There are few who would dispute that asbestos is a hazardous and toxic mineral, and that asbestos-containing materials and products can result in illness in workers and present a threat to public consumers. Exposure to airborne friable asbestos may result in a health risk because persons breathing the air may breathe in asbestos fibers. Continued exposure can increase the amount of fibers that remain in the lung. Fibers embedded in lung tissue over time may cause serious lung diseases including: asbestosis, lung cancer or mesothelioma.

For years, the Occupational Safety and Health Administration and the Environmental Protection Agency have heavily regulated asbestos. The Mine Safety and Health Administration's current asbestos standard, setting an exposure limit of 2 fibers/ml, is significantly less protective than OSHA's limit of 0.1 f/cc in terms of occupational exposure. This was brought to the forefront after the scandal in Libby, Mont., at the W.R. Grace vermiculite mine, where news accounts of cancer clusters among miners and their families triggered an Inspector General investigation. The outcome of that investigation forced MSHA to take a renewed look at its asbestos standard and to initiate rule-making.

The Inspector General recommended that MSHA lower its asbestos limits to a more protective level and address take-home contamination. It also recommended that MSHA use Transmission Electron Microscopy to analyze fiber samples that may contain asbestos. In turn, MSHA proposed a rule to lower its permissible exposure limit for asbestos, but indicated that it was likely to retain the use of Phase Contrast Microscopy analytical methods instead of moving to the more precise but costly TEM method. It did not address take-home contamination, but indicated that this was still on the table, pending consideration of comments received from the regulated community and public.

In addition, starting in 2000, MSHA began taking samples to ascertain current miners' exposure levels to asbestos. Samples were taken at all existing vermiculite, taconite, talc, and other mines to determine whether asbestos was present and at what levels. One of the major issues is whether MSHA will intentionally or inadvertently include nonasbestiform minerals into its definition of asbestos for regulatory purposes. Considerable information was placed into the rule-making record by the National Stone, Sand & Gravel Association, the Industrial Minerals Association-North America and other groups to clarify that the nonasbestiform varieties of minerals should not be regulated in the same way as asbestos. They also say that the mineral definition must be sufficiently precise to avoid inclusion of these fibers in counts for asbestos when doing compliance sampling at mines.

The MSHA revised asbestos rule was slated for release in March, according to the most recent regulatory agenda (71 Fed. Reg. 72840, Dec. 11, 2006). The agency is likely to miss that deadline, however, since it has not yet been cleared by the Office of Management and Budget, which must review the final rule before publication.

Meanwhile, on March 1, Sen. Patty Murray (D-Wash.) resumed her six-year campaign to ban asbestos in United States by reintroducing her Ban Asbestos in America Act. The distinction, this time around, is that she is now chairman of the Senate subcommittee on Employment and Workplace Safety, which has legislative jurisdiction over MSHA and OSHA. Her party also, of course, controls the Senate and its ability to move legislation to the floor. The legislation, S. 742, would ban asbestos, require investment in research and treatment, and include a public-awareness campaign to protect workers and address take-home contamination issues affecting their families. It was introduced with 13 original co-sponsors, and endorsements from groups ranging from the AFL-CIO to the Environmental Information Association.

“How many more Americans have to die before our government finally does the right thing and bans asbestos?” Murray demanded when introducing the bill. “We have to do the right thing, and we have to do it now.” She noted that 40 countries already ban asbestos entirely and the European Union joined the ban in 2005, although the United States has no prohibition on sale of asbestos-containing products. Murray claimed that 10,000 Americans still die annually from the effects of asbestos exposure. Her legislation focuses on products containing asbestos, such as brake pads and materials used in HVAC systems, as opposed to minerals in their natural states.

An estimated 1.3 million employees in construction and general industry face significant asbestos exposure on the job, according to OSHA, and Murray's press release includes cement industry workers as among those at risk of asbestos exposure. The senator also points to residents of communities near river dredging spoils or old mining operations as being at risk due to the effects of “asbestos in their midst.” Thus, fallout for the mining industry and the marketability of some of its products could be inevitable if the legislation is enacted.

Murray takes the position that asbestos is a known carcinogen, and there is no known safe level of exposure. The International Agency for Research on Cancer classifies asbestos as a class 1 human carcinogen, and asbestos-containing products must include the IARC findings on their Material Safety Data Sheets under both OSHA and MSHA's hazard communication standards.

The legislation would prohibit the importation, manufacture, processing and distribution of products containing the six regulated forms of asbestos as well as three durable fibers. The current federal definition of asbestos is the asbestiform varieties of chrysotile (serpentine), crocidolite (riebeckite), amosite (cummingtonite/grunerite), anthophyllite, tremolite, and actinolite. The bill also encompasses “biopersistent durable fibers (BDFs),” silicate fibers that occur naturally. These are similar to asbestos in terms of resistance to dissolution, leaching, and other physical, chemical, or biological processes expected from contact with lung cells and other cells and fluids in the human body. These BDFs are defined in the legislation as richterite, winchite, erionite, and the nonasbestiform varieties of amosite, crocidolite, anthophyllite, tremolite, and actinolite. This is most critical, as these nonasbestiform minerals are found in many U.S. rock mines.

S. 742 would require the EPA to issue rules to ensure that all asbestos-containing products were off the shelves within two years of the bill's enactment. It also would create a registry for individuals with mesothelioma and other asbestos-related diseases, to facilitate research and to serve as a national data clearinghouse. The National Institute for Occupational Safety and Health would be tasked studying the current state of knowledge on asbestos disease mechanisms, health effects, and measurement methods, and recommending areas where more research is needed. NIOSH's core statutory mission is to inform regulatory decisions of MSHA and OSHA.

Murray's legislation also seeks to regulate contaminant-asbestos products, defined as any product that contains asbestos as a contaminant of any mineral or other substance, in any concentration. The term fiber is defined as a single crystal or particle with a length to width ration of 3 to 1 or greater. Again, this is likely to include many mineral fibers that currently are not regulated by MSHA or OSHA as asbestos. OSHA had initially regulated the nonasbestiform minerals as asbestos but rescinded that part of its asbestos standard in 1992. However, it left the door open for re-regulation under that standard, or a separate PEL, should new information become available concerning the health effects of these minerals.

Although biopersistent durable fibers are not banned outright by the legislation, NIOSH is directed to study and report to Congress on the “disease mechanisms and health effects of exposure” to these BDFs as well as measurement and analytical methods. Interestingly, in 1999, NIOSH submitted comments to MSHA as part of that agency's asbestos rule-making and stated:

“Biopersistent durable fibers similar to asbestos, but which are not currently within the regulatory definition of asbestos, may cause health problems comparable to those from exposure to asbestos. In light of these findings, the inclusion of only six specified fibers within the asbestos regulations may create a false sense of security among workers and others who may come into contact with the other minerals that fall outside of the current regulatory definition of asbestos. Thus, NIOSH believes that durable inhalable fibers with characteristics similar to asbestos should be considered potentially harmful. Exposure to these fibers should be avoided if possible.”

Recently, NIOSH has proposed a research agenda for asbestos and other mineral fibers, focusing on three areas:

• Development of improved sampling and analytical methods for asbestos and other mineral fibers;
• Development of information and knowledge on occupational exposures to asbestos and other mineral fibers and fiber-like cleavage fragments, and the health outcomes of those exposures; and
• Development of a broader understanding of the important determinants of toxicity for fibers and fiber-like cleavage fragments.

The NIOSH draft document is open for public comment through May 31, and there will be a public hearing associated with the asbestos road map project. The report link is: http://www.cdc.gov/niosh/review/public/099

Adele Abrams is an attorney and Certified Mine Safety Professional who specializes in MSHA and OSHA enforcement litigation. She has been involved with the aggregate industry for more than 15 years. She can be reached at safetylawyer@aol.com