EPA Asbestos Ban 1989 Court Reversal

Case Information

Case: Corrosion Proof Fittings v. EPA Citation: 947 F.2d 1201 (5th Cir. 1991) Court: U.S. Court of Appeals, Fifth Circuit Date: October 18, 1991 Outcome: EPA's comprehensive asbestos ban largely overturned; only partial restrictions remained Impact: Asbestos remained legal in numerous products for decades despite EPA findings of danger Need Legal Help? If you or a loved one has been exposed to asbestos, contact us for a free case evaluation. Contact Danziger & De Llano Today

Executive Summary

One of the most misunderstood facts in American regulatory history is that asbestos was never fully banned in the United States. While the Environmental Protection Agency issued a sweeping ban and phase-out rule in 1989, the U.S. Court of Appeals for the Fifth Circuit overturned most of it in 1991—just two years later. The court did not dispute the EPA's scientific findings that asbestos caused serious health harms; instead, it found that the agency failed to perform adequate cost-benefit analysis and did not consider less burdensome alternatives. As a result, numerous asbestos-containing products remained legal to manufacture, import, and sell in the United States for decades. As Danziger & De Llano documents, this incomplete regulatory framework meant that workers, military personnel, construction employees, and the general public continued to face asbestos exposure well into the 21st century—exposure that courts have now found manufacturers knew was dangerous.

Key Facts

Timeline and Key Points
July 12, 1989	EPA issues comprehensive asbestos ban and phase-out rule (54 FR 29460)
October 18, 1991	Fifth Circuit Court of Appeals overturns 85% of the EPA ban in Corrosion Proof Fittings
Partial Restrictions Survive	New uses, flooring felt, rollboard, and specialty papers remain banned
Existing Uses Legal	Brake pads, gaskets, roofing, pipe, shingles, and clothing remained legal under the ruling
Market Decline, Not Regulation	U.S. asbestos consumption dropped from 803,000 metric tons in 1973 to ~343 metric tons in 2015—mostly due to voluntary industry phase-outs, not law
Continued Imports	The U.S. imported approximately 40,000 metric tons of asbestos in 1990, with imports continuing at significant levels into the 2010s
Global Context	Australia, the European Union, and dozens of other nations enacted complete asbestos bans, while the U.S. remained one of the last developed nations without a full ban
Liability Implications	The continued legal sale of asbestos products after EPA determinations of danger strengthens liability claims against manufacturers who knowingly exposed workers and consumers

What Did the EPA's 1989 Asbestos Ban Actually Cover?

The Ban and Phase-Out Rule

On July 12, 1989, the EPA published its comprehensive "Asbestos: Prohibition of 1989" rule in the Federal Register (54 FR 29460). This was, at the time, one of the most aggressive regulatory actions ever taken under the Toxic Substances Control Act (TSCA). The EPA proposed to phase out most uses of asbestos over a five-to-seven year period, ultimately eliminating approximately 94% of asbestos uses in the United States.

The rule was based on extensive scientific evidence. Studies by Mesothelioma.net indicate that the EPA had compiled decades of research documenting that asbestos—particularly chrysotile, amosite, and crocidolite asbestos—caused mesothelioma, lung cancer, and asbestosis in workers and consumers exposed to the mineral fibers. The agency concluded that no safe threshold of asbestos exposure existed and that a comprehensive ban was the only adequate way to protect public health.

Three-Phase Approach

The 1989 EPA rule implemented a three-phase approach to phase out asbestos-containing products:

• Phase I (January 1991): Immediate prohibition of spray-applied asbestos insulation, asbestos-containing pipe insulation, asbestos-containing block insulation, and asbestos-containing spray-on fireproofing
• Phase II (July 1991): Prohibition of asbestos-containing flooring felt, roofing felt, corrugated paper, rollboard, commercial paper, and specialty papers
• Phase III (January 1997): Phase-out of remaining asbestos-containing products, including brake pads, gaskets, friction materials, and roofing materials

The rule also restricted the use of asbestos in new product formulations. Any manufacture of a product containing asbestos that did not exist in the United States market before 1978 would be prohibited.

Scope of the Ban

The EPA's 1989 rule covered the manufacturing, importation, processing, and distribution of asbestos-containing products. It was designed to be comprehensive, acknowledging that asbestos's danger did not depend on occupational setting—workers in chlor-alkali plants faced exposure, as did construction workers installing asbestos-cement products, automotive workers handling brake components, and eventually, the general public during renovation and demolition of buildings containing asbestos materials.

Scientific Basis

The EPA's rulemaking was based on a comprehensive review of epidemiological evidence, toxicological studies, and workplace exposure data. The agency found:

• Asbestos exposure was associated with mesothelioma in occupational and environmental settings
• Dose-response relationships were difficult to establish for asbestos in part because no truly safe exposure level had been identified
• Asbestos-containing products posed ongoing risks through continued use, maintenance, repair, and eventual disposal

The EPA believed that a complete phase-out was the only adequate protective measure because asbestos fibers, once released into the environment, remained hazardous indefinitely and could contaminate water, soil, and air.

Why Did the Court Overturn the Asbestos Ban in 1991?

The Corrosion Proof Fittings Decision

Only twenty-three months after the EPA's asbestos ban took effect, the U.S. Court of Appeals for the Fifth Circuit issued its decision in Corrosion Proof Fittings, Inc. v. U.S. Environmental Protection Agency, 947 F.2d 1201 (5th Cir. 1991). The Fifth Circuit, in a decision authored by Judge Jerry E. Smith, overturned the vast majority of the EPA's asbestos ban, leaving only a fraction of the agency's restrictions in place.

The ruling shocked the environmental law community and asbestos researchers, though for reasons that would become important to mesothelioma litigation: the court was not rejecting the EPA's scientific findings. Rather, it was applying a different legal standard—one that many legal scholars have criticized as too stringent—to evaluate the EPA's cost-benefit analysis under TSCA.

The "Least Burdensome" Requirement

The Fifth Circuit's decision hinged on the least burdensome requirement of TSCA Section 6(a). When the EPA seeks to regulate a chemical substance under TSCA, it must demonstrate that its chosen regulatory approach is the least burdensome alternative that adequately protects against the unreasonable risk of injury to health or the environment.

Judge Smith wrote that the EPA had not adequately considered alternatives to a comprehensive ban. The court acknowledged that the agency had considered other regulatory approaches—such as occupational exposure limits, warning labels, and industry-specific use restrictions—but concluded that the EPA had not sufficiently analyzed why these alternatives would not be adequate. The court suggested that many asbestos-containing products could remain in use if strict occupational and exposure controls were implemented.

Cost-Benefit Analysis Concerns

The Fifth Circuit faulted the EPA for what it viewed as inadequate economic analysis. The court found that the EPA had estimated the costs of the ban—largely in lost productivity, lost sales for asbestos manufacturers, and transition costs for industries—but had allegedly underweighted these costs in relation to the quantified benefits of the ban.

Critically, the court focused on costs to manufacturers and industry rather than on the human costs of continued asbestos exposure. Danziger & De Llano's research demonstrates that this prompted substantial criticism from public health advocates and environmental lawyers, who argued that TSCA's statutory language did not require the EPA to affirmatively protect the financial interests of the asbestos industry in the face of documented health dangers.

Scientific Findings Not in Dispute

It is critical to understand what the Fifth Circuit did not do: it did not dispute the EPA's scientific findings. The court did not argue that asbestos was safe. It did not question whether asbestos caused mesothelioma or lung cancer. Instead, it found fault with the EPA's regulatory methodology—specifically, the agency's cost-benefit analysis and its consideration of alternatives.

This distinction became central to asbestos litigation over the following decades. As manufacturers continued to sell asbestos-containing products after the 1991 decision, mesothelioma plaintiffs' attorneys could point to the EPA's uncontested scientific findings to prove that manufacturers knew their products were dangerous. As Danziger & De Llano explains, the regulatory failure made it easier, not harder, to prove knowledge and intent by asbestos manufacturers.

What Asbestos Products Remained Banned After the Court Ruling?

Partial Victory: Products Still Prohibited

Although the Fifth Circuit overturned the bulk of the EPA's comprehensive ban, some asbestos-containing products did remain prohibited:

• New uses of asbestos: Any asbestos-containing product not already in the U.S. market before January 1, 1978, was prohibited
• Flooring felt containing asbestos
• Rollboard containing asbestos
• Corrugated paper containing asbestos
• Commercial paper containing asbestos
• Specialty paper containing asbestos
• Spray-applied surfacing: Already prohibited under EPA's National Emission Standards for Hazardous Air Pollutants (NESHAP) since 1973

These surviving restrictions acknowledged asbestos's dangers but were far narrower than the EPA's original 1989 vision. Together, they affected only a small percentage of asbestos uses in American industry and commerce.

Why These Products?

The products that survived the ban restriction were largely those for which documented evidence of health risk was strongest and for which occupational controls were deemed inadequate. Spray-applied asbestos, in particular, had been the subject of intense regulation because it could easily generate loose fibers during application, making exposure control nearly impossible. The ban on new uses reflected the principle that no product formulation invented after 1978 should be permitted to include asbestos if an alternative existed.

What Asbestos Products Remained Legal in the United States?

The Products That Stayed Legal

Perhaps most shocking to the American public, numerous asbestos-containing products remained legal to manufacture, import, and sell in the United States even after the 1991 court decision:

• Brake pads and linings for motor vehicles
• Clutch facings
• Gaskets and packing used in industrial equipment
• Roofing materials and asbestos-containing roof coatings
• Cement pipe and asbestos-cement products
• Asbestos-cement shingles
• Millboard
• Clothing (heat-resistant garments, protective wear)

This list may surprise modern readers. Most Americans, when asked, report a belief that asbestos has been completely banned in the United States—a misconception that likely stems from news coverage of the 1989 rule and general knowledge that asbestos is dangerous. The reality, however, is far different.

Why These Products Remained Legal

Under the Fifth Circuit's decision, these products remained legal because the court believed they could be used in occupational settings with adequate exposure controls. Brake mechanics working with brake pads, for example, were expected to follow OSHA occupational exposure standards. According to Mesothelioma Lawyer Center's legal review, workers installing asbestos-cement roofing materials or gasket products were assumed to be protected by occupational safety regulations.

What this analysis missed—a critique that has only grown stronger in subsequent litigation—is that occupational exposure standards, even when followed, do not prevent mesothelioma. OSHA's asbestos standards historically allowed exposure levels that epidemiological evidence later showed could cause asbestos-related diseases in workers who complied with those standards. Moreover, exposure occurred not only during installation and use but during maintenance, repair, demolition, and disposal of these products.

Why Do Most Americans Think Asbestos Was Fully Banned?

The Myth vs. The Reality

Survey data and public opinion polling consistently show that most Americans believe asbestos was completely banned in the United States decades ago. This widespread misconception has several origins, many of which are understandable, though the legal reality is quite different.

Voluntary Industry Phase-Outs

Beginning in the 1970s, but accelerating dramatically after the EPA's 1989 rule and the resulting media attention, major manufacturers and industries voluntarily phased out asbestos use. Many asbestos-containing products were reformulated to use alternative materials such as fiberglass, mineral wool, or synthetic fibers.

This market-driven phase-out was real and significant. U.S. asbestos consumption dropped from approximately 803,000 metric tons in 1973 to 343 metric tons in 2015—a 99.96% decline. However, this dramatic reduction was driven primarily by market forces and corporate liability concerns, not by regulatory prohibition. The fact that a product is no longer widely used does not make it banned; it means manufacturers have chosen to stop producing it, typically because consumers and purchasers demand safer alternatives.

Global Bans Created False Impressions

According to Danziger & De Llano, When the European Union issued a directive banning asbestos across member states, and when countries like Australia, Japan, and South Korea enacted comprehensive asbestos bans, media reporting often implied or stated that the United States had done the same. This created a perception that the U.S. regulatory environment matched that of other developed nations. In fact, as of 2024, the United States remained one of only a handful of developed nations without a complete asbestos ban.

Media Reporting and Linguistic Imprecision

News coverage of the 1989 EPA rule often used the word "banned" in headlines and opening paragraphs without the nuance needed to convey the rule's scope and subsequent legal challenges. When the Fifth Circuit overturned most of the rule in 1991, coverage was far less prominent, and many Americans likely never learned of the reversal. This created a lasting impression that asbestos had been banned while the legal reality continued to permit asbestos use in numerous industries.

The Persistence of Asbestos: A Hidden Hazard

Even though asbestos-containing products have become rare in new construction and manufacturing, millions of buildings constructed before the 1970s and 1980s contain asbestos materials. Insulation, floor tiles, ceiling tiles, pipe wrap, roofing felt, and dozens of other products used in older buildings are often asbestos-containing.

When these buildings are renovated, demolished, or simply age and deteriorate, asbestos fibers are released. Workers, contractors, and in some cases the general public may be exposed to asbestos released from these legacy materials. The legal status of asbestos—as a material that remains permitted in certain new product categories—is largely irrelevant to exposure from legacy asbestos. What matters is that the hazard persists.

How Did the Failed Ban Affect Mesothelioma Victims?

Continued Imports

Despite the perception of a ban and despite regulatory restrictions on certain products, the United States continued to import significant quantities of asbestos throughout the 1990s and 2000s.

• In 1990, the U.S. imported approximately 40,000 metric tons of asbestos
• By 2000, imports had declined to approximately 14,500 metric tons
• As recently as 2010, the U.S. imported 1,040 metric tons of asbestos

These imports supplied manufacturers of the products that remained legal: brake pads, gaskets, roofing materials, and other goods. The fact that asbestos was being imported and processed in the United States throughout these decades meant that workers in ports, processing facilities, manufacturing plants, and distribution centers faced ongoing exposure.

Occupational Exposure: Continuing Risk

Workers in industries that used the remaining legal asbestos products faced real exposure risks:

• Chlor-alkali workers handling asbestos diaphragms in electrolytic cells
• Automotive workers manufacturing and installing asbestos brake components
• Construction and renovation workers removing or encountering asbestos-containing materials in buildings
• Maintenance workers servicing equipment that contained asbestos gaskets and packing
• Demolition workers exposed to asbestos from pre-1980s buildings

While OSHA standards ostensibly required exposure controls, these workers still developed mesothelioma, lung cancer, and asbestosis at elevated rates. The continued legal status of asbestos products meant manufacturers could continue production without facing pressure to develop truly asbestos-free alternatives.

Environmental and Community Exposure

Beyond occupational exposure, continued asbestos use meant that schools, public buildings, military installations, and homes constructed with asbestos-containing materials would eventually require renovation or demolition. This created exposure risks for contractors, building managers, and, in some cases, the general public.

Military bases, in particular, contained extensive asbestos insulation, roofing materials, and other products. Veterans of the U.S. Navy, whose vessels were heavily insulated with asbestos, represent one of the largest cohorts of mesothelioma victims. The continued legal status of asbestos meant the U.S. military continued to construct vessels and buildings with asbestos materials for decades longer than necessary.

Manufacturer Knowledge and Liability

From a legal standpoint, the failed asbestos ban created a unique evidentiary landscape in mesothelioma litigation. Manufacturers who continued to produce asbestos-containing products after 1991 did so:

• With full knowledge that the EPA had scientifically determined asbestos caused serious health harms (the Fifth Circuit did not dispute this)
• With knowledge that comprehensive alternatives existed (the court acknowledged that alternatives had been developed)
• With knowledge that other developed nations had completely banned asbestos (comparative regulatory analysis became standard in discovery)
• With knowledge that workers exposed to their products faced mesothelioma risk (decades of epidemiological research supported this)

This combination of factors made it highly persuasive to juries that manufacturers acted with conscious disregard for human health. The regulatory failure to ban asbestos did not reduce manufacturer liability; it arguably increased it by providing clear evidence that manufacturers had access to the same scientific information available to the EPA and chose to continue selling dangerous products anyway.

⚠️ Important for Victims and Their Families If you or a family member has been diagnosed with mesothelioma or another asbestos-related disease, it is critical to understand that your exposure may have occurred in a setting where asbestos was still legal. This does not protect manufacturers—indeed, it strengthens your case by demonstrating that they knowingly continued to use and sell asbestos despite scientific evidence of danger. Consult with an experienced mesothelioma attorney to understand your legal options and the statute of limitations applicable to your case.

Timeline of Injury

The mesothelioma latency period—the time between asbestos exposure and the onset of symptoms—is typically 20 to 50 years. This means:

• Workers exposed to asbestos in the 1970s and 1980s developed mesothelioma in the 1990s and 2000s
• Workers exposed in the 1990s and 2000s are developing mesothelioma today (2026)
• The effects of asbestos exposure will continue to be diagnosed for decades to come

The Fifth Circuit's 1991 decision to overturn the EPA's comprehensive ban meant that a second generation of workers faced asbestos exposure in the 1990s and 2000s—exposure that was preventable had the ban been upheld or not overturned on procedural grounds.

The Path Forward: Recent Regulatory Developments

In 2024, the EPA announced a new ban on chrysotile asbestos, the most commonly used form of asbestos globally. However, this ban is subject to legal challenge and does not automatically address the continuing use of asbestos in products that have been in the regulatory pipeline since before 1989.

For mesothelioma victims and their families, the regulatory status of asbestos is less important than understanding your legal rights. The fact that asbestos is dangerous is not in dispute—the EPA made that clear in 1989, and the Fifth Circuit did not challenge it in 1991. What matters is that manufacturers knew, or should have known, of this danger and continued to expose workers and consumers to asbestos anyway.

Legal Implications for Mesothelioma Claims

The history of the EPA asbestos ban and its reversal carries profound implications for mesothelioma litigation:

• Manufacturer Knowledge: Courts recognize that asbestos manufacturers had access to the same scientific evidence as the EPA. If the EPA determined asbestos was dangerous, manufacturers knew it was dangerous.
• Failure to Warn: The regulatory reversal does not excuse manufacturers from warning workers and consumers of known risks. If anything, the failure to develop safer alternatives becomes more culpable when alternatives existed.
• Comparative Negligence: Manufacturers cannot claim ignorance when regulatory bodies, international regulatory agencies, and epidemiological researchers had all concluded that asbestos posed unacceptable risks.
• Statute of Limitations: The mesothelioma latency period has important implications for the statute of limitations, and in many jurisdictions, the clock does not start until diagnosis. This means individuals diagnosed with mesothelioma in 2024 or 2025 may still have valid claims even if they were exposed 40 or 50 years ago.

See Also

• U.S. Asbestos Ban History and Regulations
• EPA Chrysotile Asbestos Ban 2024
• OSHA Asbestos Standards History
• How Regulations Prove Manufacturer Liability