The Environmental Protection Agency (EPA) has unexpectedly postponed its plans to prohibit the mining, importation, and use of asbestos in certain products. This decision follows a two-year debate among the EPA, Congress, and interest groups regarding the agency’s inaction on asbestos regulations. Prior to the 1970s, asbestos, a known cancer-causing agent, was extensively used in school construction. However, once its health risks became widely known, the EPA proposed an immediate ban on the most commonly used asbestos-containing products, such as roof and flooring felt, vinyl asbestos floor tiles, and asbestos cement pipes and fittings, which all have available substitutes.
Experts suggest that these previously used asbestos-containing materials may still be present in schools, albeit not as frequently. The EPA initially announced its intention to ban asbestos in July 1983 and sent its proposal to the federal Office of Management and Budget (OMB) for review in May 1984. The OMB has been reviewing the proposal since then. Recently, A. James Barnes, the acting deputy administrator of the EPA, revealed yet another postponement in approving the ban. Mr. Barnes explained that an obscure clause in the Toxic Substances Control Act of 1976 requires the agency to submit a report to both the Occupational Safety and Health Administration (OSHA) and the Consumer Product Safety Commission, outlining the health risks associated with asbestos that the EPA has discovered. The EPA can proceed with its own rulemaking process only if these agencies are unable or unwilling to address the issue within their legal authority.
Elizabeth LaPointe, a staff member in the office of toxic substances, points out that the interagency review may also impact other EPA regulatory projects concerning asbestos. Potential standards to safeguard school-maintenance workers who handle asbestos and various asbestos regulations are presently under consideration to comply with the interagency requirement. The EPA argues that this review, which has not been employed before, is necessary under federal law to prevent duplication of regulatory efforts. However, several union officials and a member of Congress suspect that the EPA is deliberately employing delaying tactics to avoid addressing the asbestos issue in schools. When asked about the agency’s delayed discovery of the review requirement, David Ryan, an EPA spokesperson, attributed it to a simple oversight. Similar statements were made by Mr. Barnes during the press conference.
Simultaneously, in response to the EPA’s announcement in November that it would not make significant changes to its existing regulations regarding asbestos in schools, the Service Employees International Union has filed a renewed lawsuit to compel the agency to issue more stringent rules regarding asbestos hazards in schools. Health specialists for the SEIU and the AFL-CIO suggest that the White House’s budget office is influencing the EPA’s recent actions and that budget officials want to provide the agency with an opportunity to backtrack on its asbestos ban plans. While the OMB has studied the EPA’s proposed asbestos ban, it has not disclosed its stance on the matter. The OMB spokesperson, Edward Dale, declined to comment on accusations that the agency has encouraged the EPA to postpone the ban due to cost concerns.
It remains unclear whether the EPA will offer the Consumer Product Safety Commission or OSHA the option to implement the ban themselves or which specific regulatory proposals related to asbestos these two agencies could or should take on.
The requirement in question continues to be a subject of debate.
A spokesperson for the Consumer Product Safety Commission (CPSC) declined to provide details on the extent of the agency’s authority. "We currently have no plans in place," they stated.
Bankruptcy Proceedings
In a separate development, a judge overseeing the bankruptcy proceedings of the Johns Manville Corporation, the largest asbestos manufacturer in the United States, has extended the deadline for filing property-damage claims related to asbestos against the company. This extension applies to a group of 400 hospitals across the nation and was granted until the end of last week. The Denver-based Manville company filed for bankruptcy under Chapter 11 of the U.S. Bankruptcy Code in 1982. Later this month, the main presiding judge in the U.S. District Bankruptcy Court for the Southern District of New York will consider requests from the hospitals and other groups for a further extension. The deadline for schools to file claims against the company was January 31. Manville officials are currently determining the number of schools and the amount of claims filed. Ellen P. Chapnik, one of the lawyers representing schools in the bankruptcy proceedings, hasn’t been made aware of any schools requesting an extension to file claims. As of now, approximately 90 percent of the 3,500 property-damage claims received originated from schools, with estimated damages well over $1 billion. A comprehensive analysis of the claims is expected to be available by the end of February, as there have been delays in receiving completed claim forms from the New Jersey mail processing facility.
The Creditors Committee for Asbestos-Related Property Damage School Claimants, representing schools involved in the case, has recently filed a class action against the company for property damages. In addition to the individual claims filed by schools, the committee has also submitted a claim on behalf of the entire group of schools. Ms. Chapnik, one of the committee’s lawyers, clarified that these additional actions were taken to provide further avenues for addressing Manville. However, she assured that there haven’t been any issues with the individual claims so far. Seven prominent school districts, including Baltimore, Chicago, Cleveland, Detroit, Los Angeles, New York, and Washington, D.C., have opted not to participate in the class action. They have separately requested not to be represented by the school committee. Ms. Chapnik mentioned that these large school systems will still collaborate with the committee. The bankruptcy court has scheduled a pretrial conference for the class action on March 12. Allegations in the lawsuit heavily rely on a similar class action filed against 54 asbestos companies in Philadelphia in 1982. However, jurisdiction and format have been modified to align with the specific constraints of bankruptcy court. Neither the lawsuit nor the claim forms specify a specific estimate for property damages, but Ms. Chapnik guaranteed that they will certainly exceed $1 billion. She disclosed that the Newark, N.J., schools alone submitted a claim form worth $1 billion.
