Asbestos was once one of the most popular and common construction materials in America. It seemed that asbestos had every positive attribute and nothing negative. Nearly a million tons of asbestos ore was mined in the United States and turned into over three thousand different products. This massive production went on from the early 1900s until the 1980s, when authorities finally accepted how dangerous this toxic substance really was. Then, they slowly reacted by bringing in asbestos legislation.
Asbestos legislation is complicated and overlapping. Federal, state and local authorities spent the past half-century attempting to control asbestos use and exposure. There are two legal avenues used to legislate products with asbestos-containing materials (ACM). One approach is by acts passed by Congress and state legislatures, the other is rules and regulations by agencies governing asbestos handling. These are developed by federal and state enforcement authorities like the Environmental Protection Agency (EPA) and the Occupational Safety & Health Administration (OSHA).
Many asbestos laws and regulations were repealed, amended or remanded. Contrary to what most people think, the vast majority of asbestos products are not banned in the United States. The EPA made a gallant effort in the late 1980s to put a blanket phase-out and ban on all ACM, but this was struck down by a circuit court appeal. All legislation and regulatory efforts since have been directed at controlling asbestos already placed in society. They’ve also aimed at tightening civil court substantive and procedural law on how asbestos lawsuits are litigated.
Asbestos Legislation History
Asbestos use is recorded far back in history. The Romans, Egyptians, and Greeks realized asbestos was fireproof and easy to weave into products. They knew asbestos helped insulate, strengthen and lighten materials as well as prevent corrosion. These ancients also understood that asbestos was hazardous to human health. Forced workers in asbestos mines had a high rate of respiratory problems, and it was called the disease of slaves.
Once the Industrial Revolution occurred, asbestos became high in demand. Steam power changed how America operated, and the high heat of engines, boilers, and furnaces needed protection found in asbestos. Asbestos was the perfect insulation and fire protection material. It was also non-corrosive and chemically stable to work with. Soon, asbestos made its way into building products used in every American industrial, commercial and residential structure.
Not everyone believed asbestos was safe. As early as the 1930s, health authorities were warning Americans that asbestos was a carcinogen and exposure would cause diseases such as mesothelioma, lung cancer, and asbestosis. That message wasn’t widely heard. Most regulators and asbestos manufacturers ignored the warnings, downplayed them and hid the information from the public, some even conspired to put profits above safety.
The first American legislation identifying asbestos fibers as being toxic happened in the 1950s. Air pollution was becoming a big problem in crowded U.S. cities, and federal legislators realized something had to be done. The federal government passed the Air Pollution Control Act in 1955, which identified asbestos, among many other things, as being a toxic airborne substance.
By the late 1970s, it was clear how dangerous asbestos was. Doctors diagnosed thousands of mesothelioma, asbestosis and lung cancer cases. Asbestos was the common denominator and lawsuits against negligent asbestos companies flooded the courts. Asbestos claims were different from other personal injury torts. The long latency period of 10 to 50 years from exposure to disease symptoms required special attention.
For the next four decades, American legislators struggled with how to control asbestos products from killing people. They attempted to ban asbestos from every workplace and to streamline asbestos-related lawsuits in the civil courts. There has been some degree of success. However, the asbestos health problem was enormous and is still here today.
Asbestos Legislation Acts
Most of the important laws controlling asbestos are federal legislation passed by Congress. Some are general bills making reference to asbestos as a toxic material, others are specific acts directly addressing asbestos dangers. These are the significant laws pertaining to how asbestos is controlled in America.
- Clean Air Act: One of the Environmental Protection Agency’s primary mandates was dealing with air pollution. In 1970, the EPA had Congress amend the original Air Pollution Control Act to modernize it with enforcement tools. Amendments in 1977 and 1990 identified maximum exposure limits for airborne asbestos in workplaces. The Clean Air Act is still the main federal legislation dealing with asbestos exposure. However, it doesn’t mention any specific asbestos products.
- Safe Drinking Water Act: This was another EPA initiative and passed by Congress in 1976. The Safe Drinking Water Act (SDWA) identifies asbestos as a toxic substance and specifies intolerable asbestos in the nation’s potable water supply.
- Toxic Substances Control Act: The Toxic Substances Control Act (TSCA) was another EPA initiative passed in 1976. This became a leading move to designate asbestos as a toxic substance and specify how it should be contained, stored and disposed of. The TSCA doesn’t give the EPA any enforcement powers which are major criticisms.
- Federal Hazardous Substances Act: This legislation appeared in 1960 but has been amended in 1986 to include asbestos as a known hazard. The FHSA attempted to prohibit asbestos importation and manufacturing but has only affected a small number of asbestos products in America.
- Comprehensive Environmental Response, Compensation and Liability Act: Again sponsored by the EPA, Congress passed the CERCLA in 1980 as a Superfund to help clean large contaminated sites. Some of these sites were polluted with asbestos.
- Asbestos Information Act: In 1988, Congress enacted the AIA which was designed to provide public information and education on asbestos dangers. This put responsibility on asbestos manufacturers to label asbestos products and warn consumers of asbestos exposure dangers.
- Asbestos Hazard Emergency Response Act: By 1990, there was a growing public fear over asbestos exposure. The EPA had Congress declare a national emergency to deal with asbestos control. This act primarily addressed asbestos in schools and accredited asbestos inspectors.
By the late twentieth-century, asbestos litigation became the largest tort in the United States civil courts. Today, it’s the longest-running mass tort in American legal history. As such, certain civil acts were passed to deal with asbestos litigation.
The most important legislations are:
- Bankruptcy Reform Act of 1994: Asbestos lawsuits quickly amassed into a multi-billion dollar industry. Huge settlements forced many asbestos companies to seek Chapter 11 protection of the U.S. Bankruptcy Code. The act was reformed in 1994 to allow companies seeking bankruptcy protection to establish independently administered trust funds to pay claimants.
- Fairness in Asbestos Injury Resolution Act: The FAIR Act of 2006 attempted to help streamline the thousands of asbestos lawsuits in American civil courts. Critics complain this act is unfair to both plaintiffs and defendants.
- Furthering Asbestos Claim Transparency Act: The FACT Act of 2015 tried to sort out the FAIR Act, but hasn’t been passed by Congress. It’s been handed back for more committee discussion.
Asbestos Rules and Regulations
There are a wide variety of asbestos rules and regulations set out by government agencies at federal, state and local city levels. Although not technically legislative laws, some of these policies and procedures have significant clout and serious consequences for violators. Agencies include the EPA, OSHA, the Consumer Product Safety Commission (CPSC) and the Mine Safety and Health Administration (MSHA).
Their main asbestos rules and regulations are:
- CPSC Asbestos-Containing Product List
- EPA Asbestos Worker Protection Rule
- EPA Asbestos National Emission Standards for Hazardous Air Pollutants
- MSHA Surface and Underground Mine Regulations
- OSHA Asbestos General Standards
- OSHA Asbestos Construction Material Standards