E.P.A. Delays Ban On Asbestos Use In Surprise Move
Washington--In a surprise action, the Environmental Protection Agency has delayed plans to ban the mining and importation of asbestos and its use in certain products.
The decision comes on the heels of a two-year debate between the agency, the Congress, and interest groups over the epa's failure to act on asbestos regulations.
Asbestos, a known carcinogen, was used heavily in school construction until the 1970's, when the health dangers of the substance became widely publicized. Last May, the epa proposed an immediate ban on the most extensively used asbestos-containing products--roof and flooring felt, felt-backed vinyl-sheet flooring, vinyl asbestos floor tiles, and asbestos cement pipes and fittings--for which substitutes are available.
Experts say that schools were built with these products in the past and that the materials probably still are installed in schools, although far less frequently.
The epa announced its intention to ban the substance in July 1983; it sent its proposal to the federal Office of Management and Budget, as required under the regulatory-review process, in May 1984. The omb has been reviewing the proposal since then.
In a press conference this month, A. James Barnes, acting deputy administrator of the epa, announced yet another delay in approving the ban.
According to Mr. Barnes, a little-known clause in the Toxic Substances Control Act of 1976 requires the agency to send a report to both the Occupational Safety and Health Administration and the Consumer Product Safety Commission detailing the health risks associated with asbestos that the epa has discovered. Only if those agencies cannot or will not address the problem under their own legal authority can the epa go ahead with its own rulemaking procedure, Mr. Barnes said.
The interagency review could also affect the epa's other regulatory projects regarding asbestos, according to Elizabeth LaPointe, a staff member in the office of toxic substances. Ms. LaPointe said that possible standards to protect school-maintenance workers who clean up asbestos, along with the whole range of potential asbestos regulations, are being considered in light of the interagency requirement.
The agency contends that the interagency review, which it has never used before, is required by fed-eral law to prevent duplicative regu-latory efforts. But several union officials and a member of the Congress have suggested that the epa may be engaged in delaying tactics because it would prefer not to address the problem of asbestos in schools.
Asked why it took the agency so long to discover the review requirement, David Ryan, an agency spokesman, said that "it's just one of those things." Mr. Barnes made a similar statement at the press conference.
Meanwhile, in response to the epa's statement in November that it would not make substantial changes in its existing regulations regarding asbestos in schools, the Service Employees International Union has renewed a lawsuit seeking to force the agency to issue more exacting rules governing asbestos hazards in schools. (See related story on page 11.)
William K. Borwegen, a health specialist for the seiu, and Peg Seminario, a health specialist for the a.f.l.-c.i.o., have suggested that the White House's budget office is behind the epa's most recent actions and that budget officials wantto give the agency a way to back out of its plans to ban asbestos.
Edward Dale, a spokesman for the omb, said that his agency has studied the epa's proposed ban on asbestos but has not yet disclosed its views. He declined to comment on accusations that the omb has encouraged the epa to put off the ban because it is too expensive.
It is not clear whether the epa will give the consumer-safety commission or osha the option of instituting the ban themselves or just what regulatory proposals related to asbestos the two agencies could or should take over.
At the press conference, the epa distributed a memorandum from its acting general counsel, Gerald H. Yamada, in which he wrote that the other two federal agencies by law should be given the first opportunity to regulate the use of asbestos.
But Ben Everidge, a spokesman for Representative James J. Florio, Democrat of New Jersey, said that asking the other two agencies to concur on the epa's regulatory plans is "not required by any stretch of the imagination."
"We would have preferred it if the epa did this themselves as they were originally required to do," said Mr. Everidge. He added that Representative Florio, who is chairman of the House Subcommittee on Commerce, Transportation, and Tourism, which has primary oversight responsibility for the epa, believes that the agency has not done everything it can on the asbestos program and that it is simply trying to shift responsibility for the program elsewhere.
There is also some confusion about whether osha has the authority to ban asbestos. The agency has never banned a substance in the past.
Jack J. McDavitt, a spokesman for osha, said he is not sure whether the agency can regulate in the matter, but he believes that it cannot. Scott D. Widmeyer, a spokesman for the aft, also noted that "the record osha has set in this Administration is less than exemplary, so we are concerned that there might be buck-passing involved here."
A spokesman for the cpsc refused to comment on how far that agency's authority extends. "Just what we're going to do, we have no idea at this point," he said.
In another development, a judge in the bankruptcy proceedings for the largest asbestos manufacturer in the United States--the Johns Manville Corporation--extended the deadline for filing asbestos-related property-damage claims against the company until late last week for a group of 400 hospitals nationwide.
The Denver-based Manville company filed for bankruptcy in 1982 under Chapter 11 of the U.S. Bankruptcy Code. Later this month, the main judge presiding over the case in the U.S. District Bankruptcy Court for the Southern District of New York will hear requests from the hospitals and several other groups for a longer extension.
The deadline for schools to file claims against the company was Jan. 31. Manville officials are trying to determine how many schools filed such claims and for what amount. Ellen P. Chapnik, one of the lawyers representing schools in the bankruptcy proceedings, said she did not know of any schools that requested an extension for filing claims.
At last count, about 90 percent of the 3,500 property-damage claims filed had come from schools, according to Mary A. Tomenko, a spokesman for the Manville company. Ms. Tomenko said that estimated damages are well over $1 billion.
A final analysis of the claims may not be available until the end of February, she said, because of delays in getting the completed claim forms from the mailing house in New Jersey that is processing them.
The group representing schools in the case--the Creditors Committee for Asbestos-Related Property Dam-age School Claimants--last week filed a class action against the company for property damages.
It also filed a claim on behalf of the entire class of schools--in addition to the individual claims that schools have filed. Ms. Chapnik, one of the lawyers for the committee, said the committee decided to take these two additional actions to "afford our constituents another vantage for addressing Manville." However, she said she did not see any problems with the other, individual claims to date.
Seven major school districts--Baltimore, Chicago, Cleveland, Detroit, Los Angeles, New York, and Washington, D.C.--have declined to participate in the classwide actions. The districts wrote the schools committee requesting not to be represented. Ms. Chapnik said these large school systems still will work in conjunction with the schools committee.
The bankruptcy court has set a pretrial conference on the class action for March 12. Ms. Chapnik said allegations in the suit rely heavily on a similar class action against 54 asbestos companies filed in Philadelphia in 1982. The jurisdiction and form have been changed, she said, to accommodate the special constraints of bankruptcy court.
Neither the suit nor the claim forms mention a specific estimate for property damages, but Ms. Chapnik said they will definitely exceed $1 billion. She said the Newark, N.J., schools alone filed a $1-billion claim form.