How the EPA's Recent Asbestos Ban Affects the Risk
The U.S. Environmental Protection Agency approved the long-awaited total asbestos ban in 2024. That ban might or might not survive inevitable court challenges. We’ll just have to wait and see. Ironically, if courts approve the ban, the risks it creates might outweigh the benefits it creates. More on that below.
Since ancient times, builders and other companies have used asbestos because it’s a cheap and effective insulating product. Asbestos, a natural mineral, doesn’t conduct electricity, noise, or heat. Also since ancient times, asbestos users have been well aware of the health problems that asbestos exposure causes.
What are the health risks of asbestos?
These health risks mostly include serious lung diseases, like mesothelioma lung cancer. Many doctors cannot quickly locate tumors in the mesothelium (membrane that surrounds the lungs). So, the early detection and treatment window closes. Once that happens, the outlook for most cancer patients is bleak. Indeed, the five-year mesothelioma survival rate is under 10 percent.
Federal regulators have a spotty track record in preventing the dangers of asbestos.
Occupational Safety and Health Administration exposure levels are a good example. OSHA permits ambient (environmental) asbestos levels below 0.1 fibers per cubic meter of air. Yet OSHA also states that there’s no safe asbestos exposure level. We understand that government regulations try to strij=ke a middle ground between victims and industry. But you know what they say. When you walk in the middle of the road, you typically get run over.
Asbestos exposure lawyers, on the other hand, have a solid track record of protecting the health and safety of innocent people. We do this by holding polluting companies responsible for the injuries they cause and forcing them to pay compensation. This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
Asbestos Use Before the Ban
We mentioned that companies used asbestos as an insulating product. That’s just part of the story. The fireproofing qualities of asbestos, along with its low price, made it an ideal filler for construction materials like:
Popcorn Ceilings: These decorative ceilings were very popular in houses built before 1970. Those attractive bumps on the ceiling were laced with asbestos on the inside. As popcorn ceilings deteriorate, they create significant health and safety problems.
Concrete: Asbestos is also waterproof. Waterproof concrete didn’t become cost-effective until around 1980. So, contractors often mixed concrete with asbestos, especially for government projects, like sidewalks.
Drywall: As far as most companies were concerned, the more asbestos, the better. Asbestos-laced drywall often prevented fires from spreading from one room to another. Companies kept selling asbestos-laced drywall until around 1980.
Manufactured Parts: Many auto parts must withstand high degrees of heat and friction. So, manufacturers often put asbestos in auto parts like hood liners are brake pads.
The Navy extensively used asbestos as well. Before 1980, practically every ship in the fleet, from the smallest patrol boat to the largest aircraft carrier, was laced with asbestos.
A partial asbestos ban took effect in 1990 and a mining ban took effect in 2002. However, asbestos use, along with asbestos mining, is still legal in many countries, including China and Russia.
Environmental Regulations and Legal Issues
This section contains lots of Legalese and we apologize for that in advance. This section also breaks down the fact that everyone, from a small child to a large corporation, has equal rights under the law.
Legal standards in asbestos regulations
A rational basis is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendment. Courts applying rational basis review seek to determine whether a law is “rationally related” to a “legitimate” government interest, whether real or hypothetical.
Basically, if an EPA lawyer can manufacture any scenario in which asbestos regulation may affect public welfare, the courts will probably approve the ban. Furthermore, judges often help lawyers in these situations. Judges following the Supreme Court’s instructions understand themselves to be “obligated to seek out other conceivable reasons for validating” challenged laws if the government is unable to justify its own policies.
Environmental quality is clearly a public welfare issue. Congress passed many environmental quality laws such as the Clean Air Act, in the early 1970s. These laws have withstood many legal challenges. Since, in many ways, the asbestos ban is simply an extension of the Clean Air Act, the future looks bright.
The public has a right to a clean environment, and companies have a right to make a profit, assuming they sell products that are fit for ordinary use and not unduly hazardous.
Asbestos-laced products are clearly fit for ordinary use. Are they unduly hazardous? That’s the million dollar question for legislators, regulators, employers, juries, and judges.
Asbestos-containing materials (ACMs) and asbestos products are certainly hazardous.
Mesothelioma, which was mentioned above, is a particularly painful kind of cancer. The low survival rate is, in fact, almost a blessing. No one should have to live with untreatable mesothelioma.
Furthermore, mesothelioma isn’t the only asbestos exposure-related disease. Asbestos causes far more lung cancer, and is the leading occupational risk for lung cancer.
This substance also causes other kinds of cancer, such as stomach cancer. It causes several non-malignant lung diseases as well, such as pleural thickening and asbestosis. These diseases may be non-malignant, but in most cases, they’re also fatal.
However, not everyone who was exposed to asbestos develops an asbestos exposure-related disease, just like not everyone who smokes develops lung cancer. At some point, a court must draw a line.
Victims have a say in this process, through their asbestos exposure lawyers. At AsbestosClaims.Law, our team is already working on amicus briefs. When (not “if”) the asbestos ban goes to court, we will submit this brief to the court. An amicus curiae (friend of the court) brief provides judges with additional information about a subject, so they can make the best decision possible.
Does a Ban Really Protect People?
If the government had banned asbestos a hundred years ago, when the adverse health effects were well-documented and asbestos hadn’t yet become embedded in the supply chain, the answer to this question would be a resounding “yes.” Now, maybe not.
A ban, if properly executed, would certainly spare people in the future. As older residential and commercial structures deteriorate, the asbestos exposure problem will most certainly get worse.
But in the short tem, a ban might create more victims than it spares. Asbestos is completely harmless if sealed inside a wall or another structure. Once these fibers become airborne, they cause a wide range of health problems. These fibers are small enough to absorb through pores on the skin or other tiny openings.
Therefore, asbestos remediation workers run the same risk as workers who handled asbestos-laced products back in the day.
Speaking of asbestos-laced products, the above list was by no means comprehensive. Crossover contamination, mostly asbestos-laced talc, may soon be bigger than the asbestos exposure cases of the 1980s and 1990s.
When under the ground, asbestos and talc often intermingle. Talc, one of the world’s softest minerals, is found in a wide array of cosmetic products. It’s also used in other consumer products, like:
Children’s toys,
Rubber,
Insecticides,
Roofing materials,
Polished rice,
Paper,
Paint,
Crayons,
Ceramics,
Paint, and
Plastics.
Most people have most of these products in their homes at this moment. If the talc is laced with asbestos, substantial damages are usually available, as outlined above. Punitive damages are usually higher in crossover contamination cases. These companies ignored a known risk and also failed to properly examine the products they sold.
We should also say a word about incidental contamination. The Twin Towers collapse might be the worst example. The bottom third of each tower was laced with asbestos. Therefore, the toxic cloud that blanketed most of Manhattan was also laced with asbestos, along with other harmful particles, like heavy metals.