In an effort to reduce exposure to asbestos, House Energy & Commerce Committee Democrats are poised to unveil a draft bill aimed at forcing EPA to ban asbestos-containing products which is substantially stricter than a controversial bill the Senate approved last year, according to a copy of the draft legislation obtained by Inside EPA.
The draft House bill generally requires EPA to ban any product containing asbestos, a change from the Senate bill which generally allows products to contain as much as one percent asbestos. The draft House bill also includes narrower exceptions for the chlorine and crushed stone industries than the Senate bill and also sets stricter criminal enforcement penalties than the Senate bill.
The draft House measure is a victory for public health activists who have been lobbying lawmakers to craft a measure stricter than the Senate-backed version. However, the measure is likely to be met with opposition from industry officials, who are urging House lawmakers to forgo any ban stricter than the one outlined in the Senate-approved bill until further research is conducted.
Both the Senate bill and the draft House bill are scheduled for review before the committee’s Environment & Hazardous Materials Subcommittee during a Feb. 28 hearing.
Following negotiations with GOP lawmakers and industry officials, Senate Democrats last year scaled back S. 742, a bill originally introduced by Sen. Patty Murray (D-WA). The bill the Senate approved Oct. 4 only bans asbestos-containing materials, which the Toxics Substances Control Act (TSCA) defines as “any material which contains more than 1 percent asbestos by weight,” a concentration many activists argue is still capable of producing dangerous exposure levels.
Senate Democrats changed the Senate bill, following negotiations with Senate Republicans and crushed stone industry representatives who argued that naturally occurring background levels of asbestos in some substances would have made a stricter prohibition in the original bill unworkable. They also created an exemption for the chlorine manufacturing industry, which had raised concerns some of its facilities could be inadvertently shut down by the ban.
Like the original Senate bill, the draft House bill bans the importation, manufacture, processing and distribution of all asbestos-containing products, defined as “any product (including any part) to which asbestos is deliberately added, or used, or in which asbestos is otherwise present in any concentration.”
“We tried to draft a more health protective [bill] — the 1 percent thing [included in the Senate bill] has been discredited by the public health community and EPA,” a House Democratic source says, adding that EPA officials provided House legislative staff with technical assistance while drafting the legislation.
The draft House bill creates only a narrow, conditional exemption for the crushed stone industry, allowing it to only continue use of “aggregate products (extracted from stone, sand, or gravel operations)” that have an asbestos content less than 0.25 percent — the same threshold established by a strict California regulation governing the use of asbestos in road construction.
Like the Senate bill, the draft House bill also includes an exemption for the chlorine manufacturing industry. However, the exemption is far narrower in the House draft, allowing the industry only to continue using products in its manufacturing process that contain asbestos concentrations less than 0.01 percent.
The bill the Senate approved does not specify a concentration level in its exemption for the chlorine industry. The House Democratic source says House lawmakers may adjust the threshold further after chlorine industry officials provide them with more detailed information as to what concentration of asbestos their facilities use.
In addition, the draft House bill includes criminal enforcement provisions stricter than those in the Senate bill, which activists had sought. While the Senate bill adopted TSCA provisions making those who violate the ban subject to a $25,000 fine for each day of violation and up to one year of imprisonment, the House legislation authorizes up to five years of jail time.
The draft bill also includes explicit language specifying the bill should have no bearing on civil suits filed by alleged asbestos exposure victims, a difference with the Senate bill which referenced similar language in TSCA. The draft House bill states that “[i]t is not the intent of Congress” that the legislation “be interpreted as influencing, in either the plaintiff’s or defendant’s favor, the disposition of any civil action for damages relating to asbestos.”
However, while draft House language asserts it is not lawmakers’ intent to influence such claims, it also includes language specifying that it should not prevent any court from admitting the legislation as evidence, meaning plaintiffs could still seek to do so.
However, the House Democratic source says it is unclear whether this will address concerns raised by Senate Republicans who feared that an earlier version of the Senate bill, which included findings that there is no safe level of asbestos exposure, could bolster tort claims.
Another potential controversy the House bill faces is over its provisions creating a narrow exception from the ban for the crushed stone industry, which is subject to a 0.25 percent threshold. Under the bill, EPA would have one year to issue guidance establishing the test method for checking compliance with the 0.25 percent threshold and three years to promulgate final regulations establishing the test method.
The California regulation upon which the 0.25 percent threshold for crushed stone is based is problematic, an industry source argues, saying that the laboratory test method the state has adopted to enforce the threshold produces inconsistent results. The California Air Resources Board, which enforces the regulation — known as the asbestos Airborne Toxic Control Measure for surfacing applications — is currently considering revisions to the test method in order to address those concerns, the industry source notes.
In addition, industry groups are urging House lawmakers to specify in the legislation a test methodology for differentiating between asbestos fibers and nonasbestiform cleavage fragments produced by certain types of rock used in construction materials, the industry source says.
Under California law, the state would enforce whichever standard is more strict when EPA promulgates its regulation and would also evaluate the agency’s test method to determine if it is equivalent to its own, a state source says.
Every three years thereafter, the draft House legislation requires EPA to review whether the standard is protective of human health and lower the threshold if it determines it is not.
House Democrats want to avoid having the standard “frozen in statute,” the House Democratic source says. In addition, under the House bill the ban would automatically take affect within two years of passage, which bypasses an EPA rulemaking the Senate bill called for that agency officials told House legislative staff would take several years and “cost millions of dollars,” the House Democratic source says.
The draft House bill also includes a savings clause that addresses concerns the Senate bill might have preempted an existing EPA regulation banning new uses of asbestos, the House Democratic source says. The House bill also states that it is not meant to “preempt, displace, or supplant any other State or Federal law.”
House lawmakers will discuss both the draft legislation and the Senate bill during the Feb. 28 hearing, the House Democratic source says. Industry officials have asked that Roger McClellan, a former chairman of EPA’s Clean Air Scientific Advisory Committee, to testify at the hearing, the industry source says.
In addition, the subcommittee has invited Richard Lemen, a former deputy director of the National Institute for Occupational Safety & Health, and Dr. Aubrey Miller, a senior EPA medical officer, to testify, an informed source says. The subcommittee has also invited Ann Wylie, of the University of Maryland, and Peg Seminario, director of safety and health for the AFL-CIO, to testify, the informed source says. — Douglas P. Guarino
Monday, February 25, 2008