Asbestos And The Law: Understanding Your Rights And Responsibilities

Asbestos is a hazardous substance that has been linked to several serious illnesses, including asbestosis, mesothelioma, lung cancer, and diffuse pleural thickening. Despite its dangers, asbestos is not banned in the United States, and its use is regulated by a combination of federal and state laws. The Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA) are the two federal agencies primarily responsible for regulating and enforcing asbestos safety standards. The EPA regulates asbestos safety standards in non-occupational settings, while OSHA sets standards for asbestos exposure levels in the workplace.

In addition to federal laws, individual states have their own asbestos regulations that govern how asbestos is handled and abated in residences, public buildings, and commercial properties. These laws vary by state but typically cover areas such as medical criteria, two-disease rules, expedited case scheduling, joinders, forum shopping, successor liability, premises liability, and punitive damages.

While there is no complete ban on asbestos in the US, certain uses have been prohibited under various acts, and the Biden administration finalized a rule in March 2024 that bans chrysotile asbestos. However, this ban does not apply to all types of asbestos, and some uses, such as in the chlor-alkali industry, have been granted a phase-out period of up to 12 years.

The Asbestos Hazard Emergency Response Act (AHERA)

Under AHERA, each local educational agency is required to develop an asbestos management plan. This plan entails inspections, removal or encapsulation of asbestos-containing materials, reinspections, and the engagement of accredited consultants. Warning labels are also mandated on any friable asbestos-containing materials and asbestos-containing materials in routine maintenance areas of school buildings. The Act includes Department of Defense overseas schools to the extent feasible and aligned with national security considerations.

In cases where the EPA Administrator fails to promulgate regulations within the prescribed timeframe, local educational agencies are responsible for responding to asbestos concerns according to the EPA's most current guidance document. These agencies are also tasked with developing and implementing operation, maintenance, and management plans for friable asbestos-containing materials in school buildings. The Act sets standards for ambient interior asbestos concentrations after the completion of response actions, ensuring the protection of the public during all phases of the management plan, encompassing transportation and disposal processes.

Furthermore, AHERA authorizes state governors to establish administrative procedures for reviewing and approving school asbestos management plans. The Administrator is also directed to create a model accreditation plan for states, which serves as a framework for accrediting individuals who inspect, manage, and respond to asbestos-related issues in schools. This model plan sets the minimum standard that states must adopt or surpass. The Act emphasizes the importance of training by requiring EPA courses or trained personnel to meet the established standards.

Additionally, the Act addresses the role of the Secretary of Commerce and the National Bureau of Standards in developing an accreditation program for laboratories analyzing asbestos samples. It underscores the significance of using accredited personnel and laboratories as a prerequisite for receiving financial assistance under the Asbestos School Hazard Abatement Act of 1984. AHERA also establishes civil penalties for non-compliant local educational agencies and empowers the Administrator or relevant Governor to investigate citizen complaints and take necessary response measures.

AHERA has been instrumental in addressing asbestos hazards in schools, protecting students, staff, and the wider community from the dangers of asbestos exposure.

The Asbestos Information Act (AIA)

While the AIA only required reporting, it shifted the balance of power by making information about asbestos-containing materials public. Companies could no longer legally hide or be misleading about the presence of asbestos in their products. This armed the American people with information to protect themselves and their families from asbestos-containing materials. Claimants may also use the information made public in this legislation when filing an asbestos lawsuit.

The AIA was born out of Johns-Manville's public relations efforts. In October 1970, the Public Relations Subcommittee of Johns-Manville's Environmental Health Task Force met with representatives from Hill & Knowlton, a public relations firm, to discuss the formation of an organization to address the growing attention to the health effects of asbestos products. They feared this could lead to a ban. Therefore, from its formation, the AIA was a creature of industry and of the Hill & Knowlton public relations firm, now infamous for developing strategies to counteract challenges to a variety of polluting industries, including tobacco and lead paint.

The AIA's activities were generally defensive. They sought to shape public opinion and regulatory policy. In a pamphlet titled "Asbestos and Health: Questions & Answers," the AIA asked, "Can a little bit of asbestos kill you?" They responded, "Long-term medical studies of occupationally exposed workers show that low to moderate levels of exposure to asbestos do not lead to an increased rate of disease." This was despite the vast literature that indicated the opposite.

The AIA also objected to the recommendation by the OSHA Advisory Committee that the warning label includes the word "cancer" because such a label would spell the demise of numerous major product lines.

Other Asbestos-Related Laws

In addition to the AIA, there are several other federal laws pertaining to asbestos:

• The Asbestos Hazard Emergency Response Act (AHERA)
• The Asbestos School Hazard Abatement Reauthorization Act (ASHARA)
• The Clean Air Act (CAA)
• Safe Drinking Water Act (SDWA)
• The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)

The Asbestos School Hazard Abatement Reauthorization Act (ASHARA)

ASHARA extended funding for the asbestos abatement loan and grant program for schools. It also directed the Environmental Protection Agency (EPA) to increase the number of training hours required for the training disciplines under the Asbestos Model Accreditation Plan (MAP). Additionally, it expanded the accreditation requirements to cover asbestos abatement projects in all public and commercial buildings, in addition to schools.

The enactment of ASHARA was preceded by several other regulations aimed at minimizing the risk of asbestos exposure in schools. In 1980, an EPA risk study revealed that more than 8,500 schools contained friable asbestos, a form that can easily crumble and release airborne fibers. This posed a risk to more than 3 million students and 250,000 teachers and school workers. In 1982, the EPA issued the Asbestos-in-Schools Rule, requiring schools to inspect for asbestos materials, document their locations, and make this information readily available to teachers, parents, and school workers. Schools were also mandated to provide custodial workers with an EPA guide on reducing asbestos exposure.

In 1984, the Asbestos School Hazard Abatement Act (ASHAA) was introduced, providing grants and interest-free loans to public and private schools that lacked the necessary funding for emergency asbestos removal actions. However, Congress ceased to appropriate funds for ASHAA after 1993. The Asbestos Hazard Emergency Response Act (AHERA) was passed by Congress in 1986, requiring schools to develop official plans outlining the location of asbestos materials and their management strategies. AHERA authorized the EPA to issue fines and civil suits against school systems and administrators that failed to comply with federal asbestos laws during any activities related to asbestos.

The Clean Air Act (CAA)

The CAA was first passed in 1970 and has been amended several times since, including in 1977 and 1990. The 1990 amendments revised Section 112 to require the issuance of technology-based standards for major sources and certain area sources of hazardous air pollutants. "Major sources" are stationary sources that emit or have the potential to emit 10 tons per year or more of a hazardous air pollutant, or 25 tons per year or more of a combination of such pollutants.

The CAA defines the EPA's responsibilities for protecting and improving the nation's air quality and the stratospheric ozone layer. It includes provisions for the EPA to set national emission standards for hazardous air pollutants, including asbestos.

The CAA also includes the Asbestos National Emission Standard for Hazardous Air Pollutants (NESHAP) regulations, which specify work practices for asbestos to be followed during demolitions and renovations of all structures, excluding residential buildings with four or fewer dwelling units. NESHAP requires the owner of the building or operator to notify the appropriate state agency before any demolition or renovation work that could involve a certain threshold amount of asbestos or asbestos-containing material.

In addition to the CAA, other federal laws that regulate asbestos in the US include the Asbestos Hazard Emergency Response Act (AHERA), the Asbestos Information Act (AIA), the Asbestos School Hazard Abatement Reauthorization Act (ASHARA), the Safe Drinking Water Act (SDWA), and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

Safe Drinking Water Act (SDWA)

The Safe Drinking Water Act (SDWA) is a federal law that ensures the quality of drinking water in the United States. The law was passed by Congress in 1974 and has since been amended several times to provide additional protections. The SDWA authorises the Environmental Protection Agency (EPA) to set standards for drinking water quality and oversee states, localities, and water suppliers in implementing those standards.

The SDWA was established to address inconsistencies in monitoring the nation's water supply caused by differing state standards. Under the Act, the EPA is required to determine the level of contaminants in drinking water at which no adverse health effects are likely to occur.

The EPA has established a maximum contaminant level (MCL) for asbestos in drinking water of 7 million fibres per litre (MFL) > 10 µm in length. In the U.S., if asbestos is found in drinking water, it typically comes from two sources: the decay of water mains constructed of asbestos-containing cement and erosions of naturally occurring asbestos deposits into watersheds.

Water treatment plants use methods such as coagulation/filtration, direct and diatomite filtration, and corrosion control to remove asbestos from drinking water. According to the EPA, long-term exposure to asbestos above the MCL can increase the risk of developing benign intestinal polyps and serious medical conditions like malignant mesothelioma, asbestosis, and asbestos lung cancer.

Frequently asked questions