Court overturns EPA's asbestos ban.

A U.S. District Court of Appeals in New Orleans late last month struck down EPA's phaseout of most asbestos products, begun two years ago. In its response, EPA noted that "the Court does not dispute the fact that asbestos is hazardous" -- only that EPA "failed to fully meet certain procedural and analytical requirements of the Toxic Substances Control Act." EPA has not decided whether to appeal, says EPA's Al Heier.

Under the act, federal rules to reduce health risks from public exposures to toxic substances must represent the "least burdensome" regulations possible. Thus, the judges concluded, "it was not enough for the EPA to show, as it did in this case, that banning some asbestos products might reduce the harm that could from the use of these products." What EPA needed to prove was "that there is not some intermediate state of regulation that would be superior to both the currently regulated and the completely banned world," the judges stated.

They also disputed EPA's weighing of the asbestos ban's costs and benefits. For instance, they concluded that EPA "failed to provide a reasonable basis for the purported benefits of its proposed rule" when the agency refused to evaluate the toxicity of likely asbestos substitutes -- especially after receiving "credible evidence" that some planned substitutes may pose a toxic rist equal to or greater than asbestos.

Finally, the judges said EPA inappropriately withheld details on the type of analysis it would use to project the benefits of bans on various asbestos products. EPA decided to rely on an analytical method known as analogous exposure estimates only after the public-comment period had ended, not in the "10 years during which [EPA] was considering the asbestos ban," the judges noted.