Effect of Court Decision, 1992

Code of Federal Regulations – Asbestos Manufacture, Importation, Processing, and Distribution Prohibitions; Effect of Court Decision; Continuing Restrictions on Certain Asbestos-Containing Products (40 CFR 763)

Effect of Court Decision, 1992

On October 18, 1991, the New Orleans Fifth Circuit Court of Appeals “vacated and remanded” the majority of the ban on asbestos-containing products that had been passed in two years earlier.  This final rule, which took effect on July 12, 1989, under section 6 of the Toxic Substances Control Act (TSCA), set out a comprehensive three-stage plan for phasing out both the manufacture and distribution of many products that contained asbestos.  However, the court case of Corrosion Proof Fittings vs. EPA reversed this ban for most of the categories of products it had originally covered.   These proceedings were detailed in the Federal Register, vol. 57, no. 64, that was published on April 2, 1992. Though the Court “agreed with the EPA’s determination that asbestos is hazardous” and “affirmed the Agency’s authority to issue rules that ban all uses of a toxic substance,” it also found that the ban was unacceptable because the EPA failed to show that “the products banned by the rule present an unreasonable risk, and that a less burdensome regulation would not adequately protect against that risk.”  The EPA’s research, the Court said, failed to meet the burden of proof laid out in TSCA section 6(a).  Additionally, “the Court also found that EPA failed to give adequate notice and opportunity to comment on” the data they used to support the ban.  The EPA’s request for a rehearing was denied.

Continuing Bans

The ban on new products – those that did not historically contain asbestos, but did when they were manufactured, imported, or processed after July 12, 1989 – was not overturned.  The EPA claimed that the following products should fall under this ban:
  • Asbestos-cement (A/C) corrugated and flat sheet
  • A/C shingle
  • Asbestos clothing
  • Flooring felt
  • Pipeline wrap
  • Roofing felt
  • Commercial, corrugated, and specialty paper
  • Rollboard
  • Millboard
At the time of publishing, the EPA requested commentators to submit information on any other possible products that may not have been manufactured with asbestos prior to the 1989 cut-off date.  The submissions were considered public record unless the commentator specifically identified them as containing confidential business information. Reference:
  • U.S. Environmental Protection Agency. (April 2, 1992). “Code of Federal Regulations – Asbestos Manufacture, Importation, Processing, and Distribution Prohibitions; Effect of Court Decision; Continuing Restrictions on Certain Asbestos-Containing Products.” Retrieved March 21, 2011 from the EPA.