About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

6 Tul. Envtl. L.J. 423 (1992-1993)
Corrosion Proof Fittings V. EPA: Asbestos in the Fifth Circuit--A Battle of Unreasonableness

handle is hein.journals/tulev6 and id is 429 raw text is: NOTES Corrosion Proof Fittings v. EPA: ASBESTOS IN THE FIFTH CIRCUIT--A BATrLE OF UNREASONABLENESS The Asbestos Ban and Phase Out Rule (ABPO), issued by the Environmental Protection Agency (EPA) in 1989, is essentially a three-stage ban of asbestos-containing products that was to be effectuated August 25th of the same year. The rule, issued under section 6 of the Toxic Substances Control Act (TSCA), was the result of a ten year study conducted by the EPA to determine the effects of asbestos on human health and the environment. The purpose of the rule was to prohibit the future manufacture, importation, processing, and distribution in commerce of asbestos-containing products, and to require warning labels on products subject to the bans. The ABPO rule was challenged by the asbestos industry. Subsequently, most of its mandates were remanded pursuant to a decision of the Fifth Circuit Court of Appeals on October 18, 1991. The court based its holding on two main premises: (1) the EPA committed a fatal procedural error by failing to provide an opportunity for public comment on the use of analogous exposure data; and (2) the EPA failed to select the least burdensome, reasonable regulation as mandated under TSCA by (a) failing to conduct a separate cost-benefit analysis for each of the regulatory alternatives listed in TSCA and (b) failing to adequately analyze the toxicity and availability of substitute materials. The EPA salvaged a small portion of the ban when, upon a motion for clarification, the court stated that the holding applies only to products that were not being manufactured, imported, or processed on July 12, 1989, the date of the rule's promulgation. Under the court's holding, not only are asbestos-containing products that were no longer being produced or imported on that date subject to the rule but, by definition, future uses of asbestos are banned as well. The EPA was denied a Request for Rehearing, and the government did not file a petition for Writ of Certiorari to the United States Supreme Court. Corrosion Proof Fittings v. Environmental Protection Agency, 947 423

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most