Coalition Letter on Asbestos Bills
July 2, 2008
The Honorable John Dingell
Chairman
House Committee on Energy & Commerce
2125 Rayburn House Office Bldg.
Washington, D.C. 20515
Dear Chairman Dingell:
The House Energy and Commerce Subcommittee on the Environment and Hazardous Materials has been considering legislation to ban asbestos in products in the U.S. We believe that the language in the discussion draft which has been circulated would be problematic and have significant effects on our industries, the economy, and the job market. If enacted this legislation could cost the nation hundreds of thousands of American jobs without improving the protection of public health. There is a way to achieve the improvement of public health without the loss of domestic jobs; we write to express our strong support of bipartisan legislation to protect Americans from the risks of asbestos. Bipartisan legislation that has the consensus of the House of Representatives and the U.S. Senate is needed this year to facilitate Congress' efforts to reduce life-threatening diseases such as mesothelioma and lung cancer. Failure to act, or promoting legislation that cannot become law, will not serve the public health interests of our country.
Our industries supported the bipartisan and unanimous efforts to pass reasonable, risk-based legislation to ban asbestos in the Senate. We believe that the Senate legislation, sponsored by Senator Patty Murray, is an example of the type of consensus approach to eliminate asbestos that should be considered by the Committee. We stand ready to work with you to improve public health in our country now.
The Coalition for Accuracy in Minerals Definition's has three principles of agreement
1. We believe that keeping Americans safe is of the utmost importance. We support regulation of asbestos because it has the potential to cause life-threatening diseases such as asbestosis and mesothelioma.
2. We believe it critical for any law to be accurate in its definition of asbestos and its differentiation of asbestos and asbestiform minerals from nonasbestiform minerals, since exposure to the latter does not cause asbestosis or mesothelioma. Misidentification alone will cost this economy dearly without additional health protection.
3. We believe it is neither feasible nor practicable to eliminate all tolerance to a zero level, of a naturally occurring mineral which also is in trace amounts in the ambient air. Attempting this proof of a negative will stymie productivity and result in significant job loss unnecessarily.
Regulating Natural Substances to a Zero-Percent Level is Impractical
"Asbestos" is a term applied to a set of natural minerals which existed in the environment long before humans discovered that these materials had commercial uses. Asbestos fibers have been found in the air of an isolated island in the Pacific Ocean, as well as in ice cores taken from Antarctica. How do you regulate "asbestos" — a substance present all over the world — to a zero percent level?
Regulating asbestos to a zero-percent level is almost certain to cause companies that did not sell, process, or intentionally use asbestos to be subjected to the meat grinder of mass tort litigation. Indeed, were asbestos to be regulated as is envisioned in the discussion draft, companies could be not just sued, but also criminally prosecuted, should a stray fiber of asbestos be found as part of their products.
Naturally occurring asbestos is a geologic reality, and asbestos law must consider it as such. When other naturally-occurring hazardous substances have been "banned," the action levels are generally not zero and care must be taken to assure banned substances are properly defined and identified. A legitimate scientific and regulatory debate would be needed to determine the health risk benefits even if technologically feasible to control asbestos to a zero-tolerance level. According to noted risk-assessment expert Dr. Louis A. Cox, Jr., member of EPA Science Advisory Board's Asbestos Advisory Committee, "An agency's choice of numbers to be used in risk assessment should rest on sound theoretical and empirical analysis and criteria, rather than on the heuristics typically used in consensus-based and default-driven choices."
The European Union recognized the impracticality of including naturally occurring asbestos when it banned asbestos in products in 1999. The EU specifically excluded naturally occurring asbestos, not intentionally added to products, from the ban.5 Congress could advance the public health by enacting similar practical legislation that delegates to the appropriate administrative agency the responsibility to conduct risk assessment and risk management to quantify and regulate unacceptable levels of trace asbestos in products.
A Zero-Percent Ban Will Be Difficult to Implement Because Existing Test Methods Can Misidentify Nonasbestiform Minerals as Asbestos and Effective Differentiating Test Methods Must Be in Place Before Ban Legislation is Implemented
Nonasbestiform minerals, present across much of the United States, are commonly used to build roads, houses and schools. Nonasbestiform minerals are not linked to the negative health effects tied to certain asbestiform minerals. Some currently used testing methodologies, without significant analyst experience with samples from a natural, mixed-dust environment, cannot effectively differentiate between asbestiform and nonasbestiform minerals.
Absent a test methodology which can reliably distinguish asbestiform from non-asbestiform minerals on the day any ban is implemented, billions of tons of these materials would no longer be available to help build the country's infrastructure. The industries we represent would be exposed to regulatory and litigation activity that would have no relationship to health risk. This would result in an unnecessary loss of jobs.
Finally, the zero-percent ban contemplated in the discussion draft takes away regulatory discretion to implement a ban in a manner that best protects human health. Regulatory agencies are given no discretion to determine that test methods exist to implement the zero-percent ban. Common sense requires regulatory authorities be charged with balancing the unquestioned need to protect workers and the public from exposure to harmful levels of asbestos without jeopardizing the needs of our country to use other natural materials which do not cause asbestos-like health effects. Test methodologies do exist to properly distinguish between mineral groups in the natural environment, but these are different than the test methods used to affirm asbestos is no longer present in a man-made environment such as after remediation within a building.
Thank you in advance for your consideration of these views.