Congress Reignites Asbestos Scare with Ban on Aggregates

Published October 1, 2007

Depending on your perspective, hearing that something is “the next asbestos” fills you with either great joy or great trepidation.

For trial attorneys looking to replace the cash cow of asbestos litigation, the phrase brings renewed hope of class-action lawsuits and great wealth. For industry, the phrase means spending more money to defend itself from numerous frivolous claims based on speculative science.

Several products have been previously touted as “the next asbestos”–silicone breast implants, microwave popcorn, PVC pipes, silica, nanotechnology–yet none of them was able to retain the title for very long. The science just wouldn’t support the claim.

Aggregates in Crosshairs

So Congress decided to step in.

On March 7, Sen. Patty Murray (D-WA) introduced the Ban Asbestos in America Act of 2007, which ostensibly mandates an outright ban on asbestos-containing products in the United States. Despite its stated goal, the bill contains a woefully imprecise definition of asbestos. It is defined so broadly that it actually includes common rock fragments and other non-asbestiform minerals.

In other words, thanks to Congress, rocks are the next asbestos.

Consider what this means. Any worker or citizen who is “exposed” to aggregates (such as sand, stone, gravel)–at a construction project, quarry, or somewhere else–will be able to file a claim; never mind that the science won’t support it.

The entire aggregates and construction industry of this country will face potentially devastating economic impacts as the public becomes unduly alarmed every time it sees a public works project.

Hasty Effort

On July 31, the bill was unanimously reported out of the Senate Environment and Public Works Committee. The next day–despite a mandatory three-day waiting period and the fact that no committee report had been issued–Murray attempted to “hotline” the bill and have it passed under Unanimous Consent (without floor debate). Sen. Jeff Sessions (R-AL) filed an objection, and the bill failed to pass.

It next moves to the Senate floor following Congress’s August recess.

A bill identical to Murray’s was introduced in the House by Rep. Betty McCollum (D-MN) on August 2.

Poor Science

In addition to mandating a ban on asbestos-containing products, the bill also calls for a health risk study to be conducted by the National Institute for Occupational Safety and Health (NIOSH) and a public education campaign to convey the results of the study.

Strangely, the education campaign is to start several months before the study is completed.

And why NIOSH? It has no geological or mineralogical expertise, and that expertise is necessary to evaluate and distinguish between asbestos and non-asbestiform minerals.

A more appropriate choice to lead the study would be the National Academy of Sciences, which is well-equipped to conduct such an undertaking.

False Definition

Faced with the possibility of this poorly written bill becoming law, a coalition of business interests began to lobby for it to be reformed, with some success. Senators James Inhofe (R-OK) and Johnny Isakson (R-GA) helped draw attention to some of the bill’s deficiencies, and, consequently, Murray made some much-needed modifications.

Yet the study section of the bill–arguably the most important section because the results will inform subsequent regulations–still maintains the overly broad definition of asbestos.

Trial Lawyers Bonanza

At a time when asbestos lawsuits are finally on the wane, trial lawyers are looking to this bill to fill the void. They recognize better than most that the proposed law will create another cottage industry for class-action lawsuits, with an almost unlimited pool of defendants and “victims.”

Unless these bills are defeated or amended further, common rocks really will be the next asbestos.

William L. Kovacs ([email protected]) is vice president of the U.S. Chamber of Commerce Environment, Technology & Regulatory Affairs Division.