S. 742 (110th): Ban Asbestos in America Act of 2007

The text of the bill below is as of Oct 4, 2007 (Passed the Senate (Engrossed)).

Source: GPO

110th CONGRESS

1st Session

S. 742

IN THE SENATE OF THE UNITED STATES

AN ACT

To amend the Toxic Substances Control Act to reduce the health risks posed by asbestos-containing materials and products having asbestos-containing material, and for other purposes.

1.

Short title

This Act may be cited as the Ban Asbestos in America Act of 2007.

2.

Findings

Congress finds that—

(1)
(A)

the Administrator of the Environmental Protection Agency has classified asbestos as a category A human carcinogen, the highest cancer hazard classification for a substance; and

(B)

the International Agency for Research on Cancer has classified asbestos as a class 1 human carcinogen;

(2)

many people in the United States incorrectly believe that—

(A)

asbestos has been banned in the United States; and

(B)

there is no risk of exposure to asbestos through the use of new commercial products;

(3)

the United States Geological Survey reported that, in 2006, the United States used 2,000 metric tons of asbestos, of which approximately—

(A)

55 percent was used in roofing products;

(B)

26 percent was used in coatings; and

(C)

19 percent was used in other products, such as friction products;

(4)

the Department of Commerce estimates that the United States imports more than $100,000,000 of brake parts per year;

(5)

available evidence suggests that—

(A)

imports of some types of asbestos-containing products are increasing; and

(B)

some of those products are imported from foreign countries in which asbestos is poorly regulated;

(6)

families of workers are put at risk because of asbestos brought home by the workers on the shoes, clothes, skin, and hair of the workers;

(7)

the National Institutes of Health reported to Congress in 2006 that mesothelioma is a difficult disease to detect, diagnose, and treat;

(8)

the Environmental Working Group estimates that as many as 10,000 citizens of the United States die each year from mesothelioma and other asbestos-related diseases;

(9)
(A)

mesothelioma responds poorly to conventional chemotherapy; and

(B)

although new combination treatments for mesothelioma have demonstrated some benefits—

(i)

the median survival period for mesothelioma is only 1 year after diagnosis of the disease; and

(ii)

the majority of mesothelioma patients die within 2 years of diagnosis of the disease;

(10)

in hearings before Congress in the early 1970s, the example of asbestos was used to justify the need for comprehensive legislation on toxic substances;

(11)

in 1976, Congress passed the Toxic Substances Control Act (15 U.S.C. 2601 et seq.);

(12)

in 1989, the Administrator of the Environmental Protection Agency promulgated final regulations under title II of the Toxic Substances Control Act (15 U.S.C. 2641 et seq.) to phase out asbestos in consumer products by 1997;

(13)

in 1991, the United States Court of Appeals for the 5th Circuit overturned portions of the regulations, and the Federal Government did not appeal the decision to the Supreme Court;

(14)

as a result, while new applications for asbestos were banned, asbestos is still being imported and used, and is otherwise present as a contaminant, in some consumer and industrial products in the United States;

(15)

the National Cancer Institute recognizes a clear need for new agents to improve the outlook for patients with mesothelioma and other asbestos-related diseases;

(16)

the National Institutes of Health should continue to improve detection, treatment, and management of asbestos-related diseases, such as mesothelioma, including by providing continued support for the pleural mesothelioma treatment and research program and peritoneal surgical initiatives;

(17)

the Department of Defense should study diseases related to asbestos exposure in the military and veteran population, including by conducting research in coordination with the National Institutes of Health on the early detection and treatment of mesothelioma;

(18)

with some exceptions relating to certain uses, asbestos has been banned in 40 countries, including Argentina, Australia, Austria, Belgium, Chile, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Latvia, Luxembourg, the Netherlands, Norway, Poland, Portugal, Saudi Arabia, the Slovak Republic, Spain, Sweden, Switzerland, and the United Kingdom;

(19)

asbestos was banned throughout the European Union in 2005; and

(20)

banning asbestos from being used in or imported into the United States will provide certainty to manufacturers, builders, environmental remediation firms, workers, and consumers that after a specific date, asbestos will not be used, added, or allowed to be knowingly present as a contaminant in new construction and manufacturing materials used in this country.

3.

Asbestos-containing products

(a)

In general

Title II of the Toxic Substances Control Act (15 U.S.C. 2641 et seq.) is amended—

(1)

by inserting before section 201 (15 U.S.C. 2641) the following:

A

General provisions

;

(2)

in section 202(3) (15 U.S.C. 2642(3))—

(A)

in each of subparagraphs (A) through (D), by striking the commas at the end of the subparagraphs and inserting semicolons;

(B)

in subparagraph (E), by striking , or and inserting a semicolon;

(C)

in subparagraph (F), by striking the period at the end and inserting a semicolon; and

(D)

by adding at the end the following:

(G)

any material formerly classified as tremolite, including—

(i)

winchite asbestos; and

(ii)

richterite asbestos; and

(H)

any asbestiform amphibole mineral.

;

and
(3)

by adding at the end the following:

B

Asbestos-containing products

221.

Definitions

In this subtitle:

(1)

Appropriate Federal entity

The term appropriate Federal entity means any appropriate Federal entity, as determined by the Director, including—

(A)

the Agency for Toxic Substances and Disease Registry;

(B)

the Department of Health and Human Services;

(C)

the Environmental Protection Agency;

(D)

the Mine Safety and Health Administration;

(E)

the National Institute of Standards and Technology;

(F)

the United States Geological Survey;

(G)

the National Institute of Environmental Health Sciences;

(H)

the National Institute for Occupational Safety and Health; and

(I)

the Occupational Health and Safety Administration.

(2)

Asbestos-containing product

The term asbestos-containing product means any product (including any part) to which asbestos is deliberately or knowingly added or in which asbestos is deliberately used or knowingly present in any concentration.

(3)

Elongated mineral particle

The term elongated mineral particle means a single crystal or similarly elongated polycrystalline aggregate particle with a length to width ratio of 3 to 1 or greater.

(4)

Biopersistent elongated mineral particle

The term biopersistent elongated mineral particle means an elongated mineral particle that—

(A)

occurs naturally in the environment; and

(B)

is similar to asbestos in—

(i)

resistance to dissolution;

(ii)

leaching; and

(iii)

other physical, chemical, or biological processes expected from contact with lung cells and other cells and fluids in the human body.

(5)

Director

The term Director means the Director of the National Institute for Occupational Safety and Health.

(6)

Person

The term person means—

(A)

any individual;

(B)

any corporation, company, association, firm, partnership, joint venture, sole proprietorship, or other for-profit or nonprofit business entity (including any manufacturer, importer, distributor, or processor);

(C)

any Federal, State, or local department, agency, or instrumentality; and

(D)

any interstate body.

222.

National Institute for Occupational Safety and Health studies

(a)

Studies

(1)

Current state of science study

(A)

In general

The Director, in consultation with the United States Geological Survey, the Environmental Protection Agency, the National Academy of Sciences, and appropriate Federal entities, shall conduct a study and, not later than 1 year after the date of enactment of this subtitle, submit to the Administrator, the Committees on Environment and Public Works and Health, Education, Labor, and Pensions of the Senate, the Committees on Energy and Commerce and Education and Labor of the House of Representatives, and other Federal agencies a report containing—

(i)

a description of the current state of the science relating to—

(I)

the disease mechanisms and health effects of exposure to non-asbestiform minerals and elongated mineral particles; and

(II)

methods for measuring and analyzing non-asbestiform minerals and elongated mineral particles; and

(ii)

recommendations for—

(I)

future research relating to diseases caused by exposure to—

(aa)

non-asbestiform minerals; and

(bb)

elongated mineral particles;

(II)

exposure assessment practice needs;

(III)

any new classification of naturally occurring elongated mineral particles; and

(IV)

1 or more definitions and dimensions to be used for the quantification and risk assessment of—

(aa)

non-asbestiform minerals; and

(bb)

elongated mineral particles.

(B)

Components

The report described in subparagraph (A) shall include—

(i)

peer-reviewed published literature;

(ii)

regulatory decisions; and

(iii)

information obtained from the National Institute for Occupational Safety Asbestos Research Roadmap.

(2)

Mode of action and health effects study

(A)

In general

The Director, in consultation with the Environmental Protection Agency, the National Academy of Sciences, and appropriate Federal entities, shall conduct a study—

(i)

to evaluate the known or potential mode of action and health effects of—

(I)

non-asbestiform minerals; and

(II)

elongated mineral particles; and

(ii)

to develop recommendations for a means by which to identify, distinguish, and measure any non-asbestiform mineral or elongated mineral particle that—

(I)

may cause any disease or health effect; or

(II)

does not cause any disease or health effect.

(B)

Report

Not later than 18 months after the date of enactment of this subtitle, the Director shall submit to the Committees on Environment and Public Works and Health, Education, Labor, and Pensions of the Senate, and the Committees on Energy and Commerce and Education and Labor of the House of Representatives, a report containing—

(i)

a description of the manner by which non-asbestiform minerals and elongated mineral particles possess the ability to remain biopersistent in the human body, with regard to the ability of non-asbestiform minerals and elongated mineral particles—

(I)

to exhibit resistence to dissolution and leaching; and

(II)

to induce other physical, chemical, and biological processes as a result of contact with—

(aa)

lung cells; and

(bb)

other cells and fluids in the human body connected to a disease;

(ii)

a description of the means by which to identify, distinguish, and measure any non-asbestiform mineral or elongated mineral particle that—

(I)

may cause any disease or health effect, as determined by the Director, including—

(aa)

mesothelioma;

(bb)

any other form of cancer; and

(cc)

any other non-cancer form of disease; and

(II)

does not cause any disease or health effect; and

(iii)

recommendations for such controls as the Director determines to be appropriate to protect human health.

(3)

Authorization of appropriations

There are authorized to be appropriated such sums as are necessary to carry out this subsection.

(b)

Methodology study

(1)

In general

On the date on which the Director submits the report described in subsection (a)(2)(B), the Director shall initiate a study—

(A)

to develop improved sampling and analytical methods for non-asbestiform minerals and elongated mineral particles; and

(B)

to clarify the mechanism of action.

(2)

Authorization of appropriations

There are authorized to be appropriated such sums as are necessary to carry out this subsection.

223.

Public education program

(a)

In general

Not later than 1 year after the date of enactment of this subtitle, the Administrator, in consultation with the Chairman of the Consumer Product Safety Commission, the Director of the Centers for Disease Control and Prevention, and the Secretary of Labor, shall establish a plan—

(1)

to increase awareness of the dangers posed by—

(A)

products having asbestos-containing materials in homes and workplaces; and

(B)

asbestos-related diseases;

(2)

to provide current and comprehensive information to asbestos-related disease patients, family members of patients, and front-line health care providers on—

(A)

the dangers of asbestos exposure;

(B)

asbestos-related labeling information;

(C)

health effects of exposure to asbestos;

(D)

symptoms of asbestos exposure; and

(E)

available and developing treatments for asbestos-related diseases, including clinical trials;

(3)

to encourage asbestos-related disease patients, family members of patients, and front-line health care providers to participate in research and treatment endeavors relating to asbestos; and

(4)

to encourage health care providers and researchers to provide to asbestos-related disease patients and family members of patients information relating to research, diagnostic, and clinical treatments relating to asbestos.

(b)

Greatest risks

In establishing the program, the Administrator shall give priority to products that have asbestos-containing materials and are used by consumers and workers that pose the greatest risk of injury to human health.

(c)

Authorization of appropriations

There are authorized to be appropriated such sums as are necessary to carry out this section.

C

Prohibition on asbestos-containing materials

231.

Definition of distribute in commerce

In this subtitle:

(1)

In general

The term distribute in commerce has the meaning given the term in section 3.

(2)

Exclusions

The term distribute in commerce does not include—

(A)

the possession of an asbestos-containing material by a person that is an end user; or

(B)

the possession of an asbestos-containing material by a person solely for the purpose of disposal of the asbestos-containing material in compliance with applicable Federal, State, and local requirements.

232.

Prohibition on asbestos-containing materials

(a)

In general

Subject to subsection (b), the Administrator shall promulgate—

(1)

not later than 1 year after the date of enactment of this subtitle, proposed regulations that—

(A)

prohibit persons from importing, manufacturing, processing, or distributing in commerce asbestos-containing materials; and

(B)

provide for implementation of subsections (b) and (c); and

(2)

not later than 2 years after the date of enactment of this subtitle, final regulations that, effective beginning 60 days after the date of promulgation, prohibit persons from importing, manufacturing, processing, or distributing in commerce asbestos-containing materials.

(b)

Exemptions

(1)

In general

Any person may petition the Administrator for, and the Administrator may grant, an exemption from the requirements of subsection (a) if the Administrator determines that—

(A)

the exemption would not result in an unreasonable risk of injury to health or the environment; and

(B)

the person has made good faith efforts to develop, but has been unable to develop, a substance, or identify a mineral, that—

(i)

does not present an unreasonable risk of injury to health or the environment; and

(ii)

may be substituted for an asbestos-containing material.

(2)

Terms and conditions

An exemption granted under this subsection shall be in effect for such period (not to exceed a total of 3 years) and subject to such terms and conditions as the Administrator may prescribe.

(3)

Governmental use

(A)

In general

The Administrator shall provide an exemption from the requirements of subsection (a), without review or limit on duration, if the exemption for asbestos-containing material is—

(i)

sought by the Secretary of Defense and the Secretary certifies, and provides a copy of that certification to the Administrator and Congress, that—

(I)

use of the asbestos containing material is necessary to the critical functions of the Department;

(II)

no reasonable alternatives to the asbestos containing material exist for the intended purpose; and

(III)

use of the asbestos containing material will not result in an unreasonable risk to health or the environment; or

(ii)

sought by the Administrator of the National Aeronautics and Space Administration and the Administrator of the National Aeronautics and Space Administration certifies, and provides a copy of that certification to Congress, that—

(I)

the asbestos-containing material is necessary to the critical functions of the National Aeronautics and Space Administration;

(II)

no reasonable alternatives to the asbestos-containing material exist for the intended purpose; and

(III)

the use of the asbestos-containing material will not result in an unreasonable risk to health or the environment.

(B)

Administrative Procedure Act

Any exemption provided by the Administrator under subparagraph (A), and any certification made by the Secretary of Defense under subparagraph (A)(i) shall not be subject to the provisions of subchapter II of chapter 5, and chapter 7, of title 5, United States Code (commonly known as the Administrative Procedure Act).

(4)

Diaphragms for existing electrolysis installations

(A)

In general

The requirements of subsection (a) shall not apply to any diaphragm electrolysis installation in existence as of the date of enactment of this subtitle.

(B)

Review

(i)

In general

Not later than 3 years after the date of enactment of this subtitle, and every 6 years thereafter, the Administrator shall review the exemption provided under subparagraph (A) to determine the appropriateness of the exemption.

(ii)

Scope

In conducting the review of the exemption provided under subparagraph (A), the Administrator shall examine the risk of injury to an individual relating to the operation by the individual of each diaphragm electrolysis installation described in subparagraph (A).

(iii)

Public participation

In conducting the review of the exemption provided under subparagraph (A), the Administrator shall provide public notice and a 30-day period of public comment.

(C)

Decision relating to extension of exemption

Upon completion of a review of a diaphragm electrolysis installation under subparagraph (B)(i), if the Administrator determines that the diaphragm electrolysis installation poses an unreasonable risk of injury to health or the environment, the Administrator may terminate the exemption provided to the diaphragm electrolysis installation under subparagraph (A).

(c)

Disposal

(1)

In general

Except as provided in paragraph (2), not later than 2 years after the date of enactment of this subtitle, each person that possesses asbestos-containing material that is subject to the prohibition established under this section shall dispose of the asbestos-containing material, by a means that is in compliance with applicable Federal, State, and local requirements.

(2)

Exemption

Nothing in paragraph (1)—

(A)

applies to asbestos-containing material that—

(i)

is no longer in the stream of commerce; or

(ii)

is in the possession of an end user; or

(B)

requires that asbestos-containing material described in subparagraph (A) be removed or replaced.

(d)

Compliance testing

(1)

In general

Subject to paragraph (2), and in accordance with paragraph (3), not later than 1 year after the date on which the Administrator promulgates the regulations under subsection (a), and annually thereafter, to ensure compliance with those regulations, the Administrator shall carry out tests on an appropriate quantity of products, as determined by the Administrator, to determine if the products have asbestos-containing material.

(2)

Exempted products

In carrying out the compliance testing under paragraph (1), the Administrator shall not carry out any test on any product that contains any material that is the subject of an exemption described in subsection (b).

(3)

Appropriate test methodologies

In carrying out the compliance testing under paragraph (1), the Administrator shall use the appropriate test methodology for each product that is the subject of the compliance testing.

(4)

Annual report

(A)

In general

Upon completion of each annual testing period described in paragraph (1), the Administrator shall prepare a report for the annual testing period covered by the report, describing those products that have asbestos-containing material.

(B)

Public availability

Not later than 90 days after the date of completion of each annual testing period described in paragraph (1), the Administrator shall make the report for the annual testing period covered by the report available to the public.

.

(b)

Conforming amendment

The table of contents in sections 1 of the Toxic Substances Control Act (15 U.S.C. prec. 2601) is amended—

(1)

by inserting before the item relating to section 201 the following:

Subtitle A–General provisions

;

and
(2)

by adding at the end of the items relating to title II the following:

Subtitle B—Asbestos-containing products

Sec. 221. Definitions.

Sec. 222. National Institute for Occupational Safety and Health report and study.

Sec. 223. Public education program.

Subtitle C—Prohibition on asbestos-containing materials

Sec. 231. Prohibition on asbestos-containing materials.

.

4.

Asbestos-related diseases

Subpart 1 of part C of title IV of the Public Health Service Act (42 U.S.C. 285 et seq.) is amended by adding at the end the following:

417E.

Research on asbestos-related diseases

(a)

In general

The Secretary, acting through the Director of NIH and the Director of the Centers for Disease Control and Prevention, shall expand, intensify, and coordinate programs for the conduct and support of research on diseases caused by exposure to asbestos, particularly mesothelioma, asbestosis, and pleural injuries.

(b)

Administration

The Secretary shall carry out this section in collaboration with—

(1)

the Administrator of the Agency for Toxic Substances and Disease Registry;

(2)

the Director of the National Institute for Occupational Safety and Health; and

(3)

the head of any other agency, as the Secretary determines to be appropriate.

(c)

Asbestos-related disease registry

(1)

In general

Not later than 1 year after the date of enactment of this section, the Director of the Centers for Disease Control and Prevention, in cooperation with the Director of the National Institute for Occupational Safety and Health and the Administrator of the Agency for Toxic Substances and Disease Registry, shall establish a mechanism by which to obtain, coordinate, and provide data and specimens from—

(A)

State cancer registries and other cancer registries;

(B)

the National Mesothelioma Virtual Registry and Tissue Bank; and

(C)

each entity participating in the asbestos-related disease research and treatment network established under section 417F(a).

(2)

Treatment

The data and specimens described in paragraph (1) shall form the basis for establishing a national clearinghouse for data and specimens relating to asbestos-related diseases, with a particular emphasis on mesothelioma.

(d)

Authorization of appropriations

In addition to amounts made available for the purposes described in subsection (a) under other law, there are authorized to be appropriated to carry out this section such sums as are necessary for fiscal year 2008 and each fiscal year thereafter.

417F.

Asbestos-related disease research and treatment network

(a)

Establishment

For each of fiscal years 2008 through 2012, the Director of NIH, in collaboration with other applicable Federal, State, and local agencies and departments, shall establish and maintain an asbestos-related disease research and treatment network (referred to in this section as the Network) to support the detection, prevention, treatment, and cure of asbestos-related diseases, with particular emphasis on malignant mesothelioma.

(b)

Inclusions

The Network shall include—

(1)

intramural research initiatives of the National Institutes of Health; and

(2)

at least 10 extramural asbestos-related disease research and treatment centers, as selected by the Director of NIH in accordance with subsection (c).

(c)

Extramural asbestos-related disease research and treatment centers

(1)

In general

For each fiscal year during which the Network is operated and maintained under subsection (a), the Director of NIH shall select for inclusion in the Network not less than 10 nonprofit hospitals, universities, or medical or research institutions incorporated or organized in the United States that, as determined by the Director of NIH—

(A)

have exemplary experience and qualifications in research and treatment of asbestos-related diseases;

(B)

have access to an appropriate population of patients with asbestos-related diseases; and

(C)

are geographically distributed throughout the United States, with special consideration given to areas of high incidence of asbestos-related diseases.

(2)

Requirements

Each center selected under paragraph (1) shall—

(A)

be chosen by the Director of NIH after competitive peer review;

(B)

conduct laboratory and clinical research, including clinical trials, relating to—

(i)

mechanisms for effective therapeutic treatment of asbestos-related diseases;

(ii)

early detection and prevention of asbestos-related diseases;

(iii)

palliation of asbestos-related disease symptoms; and

(iv)

pain management with respect to asbestos-related diseases;

(C)

offer to asbestos-related disease patients travel and lodging assistance as necessary—

(i)

to accommodate the maximum number of patients practicable; and

(ii)

to serve a number of patients at the center sufficient to conduct a meaningful clinical trial;

(D)

seek to collaborate with at least 1 medical center of the Department of Veterans Affairs to provide research benefits and care to veterans who have suffered excessively from asbestos-related diseases, particularly mesothelioma; and

(E)

coordinate the research and treatment efforts of the center (including specimen sharing and use of common infomatics) with other entities included in—

(i)

the Network; and

(ii)

the National Virtual Mesothelioma Registry and Tissue Bank.

(3)

Period of inclusion

A center selected by the Director of NIH under this subsection shall be included in the Network for—

(A)

the 1-year period beginning on the date of selection of the center; or

(B)

such longer period as the Director of NIH determines to be appropriate.

(d)

Grants

The Director of NIH shall provide to each center selected for inclusion in the Network under subsection (c) for the fiscal year a grant in an amount equal to $1,000,000 to support the detection, prevention, treatment, and cure of asbestos-related diseases, with particular emphasis on malignant mesothelioma.

(e)

Authorization of appropriations

There is authorized to be appropriated to carry out this section $10,000,000 for each of fiscal years 2008 through 2012.

417G.

Department of Defense research

(a)

In general

The Secretary, acting through the United States Army Medical Research and Materiel Command, shall support research on mesothelioma and other asbestos-related diseases that has clear scientific value and direct relevance to the health of members and veterans of the Armed Forces, in accordance with the appropriate congressionally directed medical research program, with the goal of advancing the understanding, early detection, and treatment of asbestos-related mesothelioma and other asbestos-related diseases.

(b)

Administration

The Secretary shall carry out this section in collaboration with—

(1)

the Director of NIH;

(2)

the Director of the National Institute of Occupational Safety and Health; and

(3)

the head of any other agency, as the Secretary determines to be appropriate.

(c)

Authorization of appropriations

There are authorized to be appropriated to carry out this section such sums as are necessary for fiscal year 2008 and each fiscal year thereafter.

.

Passed the Senate October 4, 2007.

Secretary.