House Democrats craft asbestos-ban bill stricter than Senate version

April 1, 2008

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
From InsideEPA.com

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Disease likely to increase thanks to mass poisoning by W.R. Grace

March 24, 2008

Workers exposed to low levels of vermiculite from Libby, Montana more than two decades ago are at an increased risk for lung disease, according to research from the University of Cincinnati (UC).

An article in Science News Daily reported today that:

Workers with low-level exposures to Libby vermiculite ore may not have obvious health effects right away, but the past exposure is something of which their physicians should be aware. Once inhaled, these fibers are very persistent and stay in the lung for a long time. They lodge in the lung tissue and the tissue that lines the chest wall and cause inflammation, which can lead to chronic lung problems and diseases. Records show that until the Montana mine was closed in 1990, it provided up to 80 percent of the world’s vermiculite supply–which was widely used in both commercial and residential applications, including home insulation, packing materials, construction materials and gardening products. Vermiculite ore is now mined from other sources that reportedly do not contain similar asbestos-like mineral fibers.

The chest X-ray changes associated with the low cumulative fiber exposure are a public health concern. The Libby vermiculite ore was widely distributed across the United States for residential and commercial use, which means it could impact not only the workers who processed it but also consumers who used it for home insulation.

The full story is posted here.


Baucus threatens EPA subpoenas over Libby asbestos information

August 7, 2007

Montana Sen. Max Baucus threatened Monday to subpoena the Environmental Protection Agency over why asbestos poisoning in Libby, was never declared a public health emergency. Baucus has requested five year-old documents from the agency detailing deliberations over whether it would declare such an emergency. Baucus said such a declaration would have lead to more extensive cleanup and health protections for the town, which is home to the now-closed W.R. Grace & Co. Vermiculite mine. In a speech during a visit to Libby on Monday, EPA Administrator Stephen Johnson said he would get the documents to Baucus by Aug. 31.

Read the whole story here, including intervention by the White House to prevent EPA from acting: Associated Press, August 7, 2007.

Information about mesothelioma medical and legal options provided by the Law Office of Roger G. Worthington, P.C., www.mesothel.com.


Asbestos violations in charter schools uncovered

August 7, 2007

Contact Information: Dean Higuchi, 808-541-2711, higuchi.dean@epa.gov

(08/06/07) SAN FRANCISCO — The U.S. Environmental Protection Agency recently fined seven Tucson charter school operators a combined total of $67,240 for Asbestos Hazard Emergency Response Act violations.

In May 2006, EPA inspectors discovered the school operators all failed to conduct inspections to determine if asbestos-containing material was present in school buildings and failed to develop asbestos management plans. Accredited inspectors later found asbestos in six of the schools. All of the schools have since taken necessary actions to comply with the law.

“Asbestos in schools has the potential for endangering the health of students, teachers, and others, including maintenance workers,” said Nathan Lau, Associate Director for the Communities and Ecosystems Division in EPA’s Pacific Southwest region. “The EPA takes these violations seriously, and is pleased that the schools have now conducted the inspections and put asbestos management plans in place.”

The schools are:

* Pima Partnership School: The operator Pima Prevention Partnership, Inc. was fined $12,600.
* Transformational Learning Center: The operator TLC Charter Schools, Inc. was fined $12,600.
* Alternative Computerized Education Charter High School: The operator Tucson Youth Development, Inc. was fined $12,600.
* Tucson Urban League Academy: The operator Tucson Urban League, Inc. was fined $11,300.

Asbestos was discovered at all four schools during inspections. Each school now has a management plan including the location of the asbestos and how the school will properly manage the asbestos to reduce the risk of exposure.

* City High School: The operator of the school, Tucson Small School Project, Inc., was fined $8,800. During an inspection, the inspector found asbestos materials, including an area of damaged acoustic ceiling plaster which needed removal. The school has since implemented a management plan and removed the damaged asbestos-containing building material.

* Toltecali Academy, Calli Ollin Academy, and Hiaki High School: The operator of these schools, Calli Ollin Academy, was fined $7,300. During an inspection of Calli Ollin Academy, the inspector found asbestos materials, including about three linear feet of damaged pipe insulation. The school has since implemented a management plan and removed the damaged asbestos material for Calli Ollin Academy. Toltecali Academy was constructed in 2002 and a letter from the builder of the school confirmed that no asbestos containing building material was used in construction of the school. A management plan for the school has since been prepared. Asbestos was not found during an inspection of Hiaki High School, but the inspection was not conducted prior to operating the school. The school operator also failed to maintain an asbestos management plan, and has since developed a plan and has records available showing no asbestos was found at Hiaki.

* Southside Community School: The operator, Aprender Tucson, will pay a cash penalty of $1,453, after subtracting the EPA approved costs of complying with the law from a $2,040 fine. After the EPA’s inspection, the school operator obtained written confirmation from the builder of the school that no asbestos was used in construction, but failed to maintain an asbestos management plan. The school now has an asbestos management plan and records available showing no asbestos was used in the construction of the school.

Each school is allowed to subtract properly documented costs of complying with the regulations from the penalty amount.

Federal law requires schools to conduct an initial inspection using accredited inspectors to determine if asbestos-containing building material is present and develop a management plan to address the asbestos materials found in the school buildings. Schools are also required to appoint a designated person who is trained to oversee asbestos activities and ensure compliance with federal regulations. Finally, schools must conduct periodic surveillance and re-inspections, properly train the maintenance and custodial staff, and maintain records in the management plan.

Local education agencies must keep an updated copy of the management plan in its administrative office and at the school which must be made available for inspection by parents, teachers, and the general public.

Information about mesothelioma medical and legal options provided by the Law Office of Roger G. Worthington, P.C., www.mesothel.com.