Lawsuits Over EPA Asbestos Ban
Corporate Attorneys are Rolling Out Their Lawsuits as EPA Bans Chrysotile Asbestos
The ink isn’t even dry on the March 2024 asbestos ban, and asbestos providers are already sharpening their knives.
One prominent industry lawyer says the strategy will focus on the difference between the EPA’s regulatory models, legally necessary medical evidence, and Rule 403’s prohibition of unduly prejudicial evidence. Dennis Paustenbach, president of Paustenbach and Associates, a consulting firm specializing in toxicology and risk assessment, predicted that, during a lawsuit, the court could exclude the EPA’s regulatory models under Rule 403. The agency’s conclusions about chrysotile’s cancer potency, for example, and “the alleged historical hazards to vehicle mechanics is entirely inconsistent with the epidemiological evidence,” he said.
Another lawyer was even more confident. Laurence Nassif, managing partner at Simmons Hanly Conroy, said the EPA’s rule “can only help our cases in court.” Defendants previously have used the EPA’s lack of a ban to say chrysotile is not that dangerous and not as toxic as some other forms of the mineral, he said. The EPA’s rule removes that argument, Nassif said. “It will help us because they can’t say EPA allows it.”
Asbestos Regulation and Legal Actions
2024 isn’t the first time the EPA tried to ban asbestos. The previous go-arounds didn’t end too well for victims and potential victims.
In 1989, the EPA passed a rule almost identical to the 2024 ban. Predictably, asbestos providers immediately hired lawyers and challenged the ban.
That time, their strategy focused on an obscure provision in the 1976 Toxic Substances Control Act. Lawmakers introduced this law in 1971. Advocacy groups on both sides of the political spectrum immediately opposed it. Environmental groups claimed it didn’t go far enough, and industry groups claimed it went too far. So, the final law contained stern words that protected people and loopholes tha protected companies.
One such loophole was the grandfather clause. Chemicals currently in use, including asbestos, were presumptively safe under the TCSA. To take action against dangerous chemicals, the EPA had to prove the substance posed an “unreasonable risk of injury to health or the environment.” Then, any regulation or ban must use the least burdensome method to reduce chemical risk to reasonable levels while taking into consideration the benefits provided by the chemical product or process.
Demonstrating the Many Dangers of Asbestos
Right from the start, evidence was an issue for the EPA. To prove that a chemical was dangerous and overcome the grandfather clause presumption, the EPA needed proof. Initially, these tests required mutual agreement with the industry or voluntary industry efforts under the HPV Challenge Program.
Later, the EPA created the Sustainable Futures (SF) Initiative model, which allowed companies to voluntarily screen their products that might pose risks to human health or the environment. In all these instances, companies usually were less than forthcoming about the dangerous side-effects of their products.
Despite the lack of evidence, EPA lawyers jumped over the first two hurdles. They overcame the safety presumption and proved that asbestos was dangerous, thanks in large part to the government’s no safe exposure level finding. But the third hurdle was too much. No one was too sympathetic when asbestos companies said they’d lose money. But when these companies threatened to cut jobs, the well-documented mesothelioma risk suddenly didn’t seem as dangerous.
“Least Burdensome” Standard Removeds
Congress removed the “least burdensome” hurdle in 2016. An asbestos ban seemed inevitable at that point. But industry lobbyists killed several bills on the subject, including one in 2020 that almost made it to a vote.
To avoid the legislative wars, advocates focused on the EPA’s rulemaking power. But there will be a fight either way. Ruelmakeing bypasses the contentious legislative process, but runs head-on into the contentious judicial process.
Asbestos Exposure Risks
Pleural mesothelioma (lung cancer) is the most dangerous side-effect associated with asbestos exposure. But it’s not the only one. Other health risks include:
Asbestosis: Inhaled asbestos fibers generally lodge in the lungs, because the body cannot naturally dispose of such toxins. As a result, these fibers cause permanent lung damage, mostly because they burn certain breathing airways in the lungs. The burns cause scar tissue, which blocks these vital airways.
Peritoneal Mesothelioma (Abdominal Cancer): This category includes several forms of abdominal cancer, including cervical cancer. Indirect asbestos exposure often causes this illness. Talc and asbestos are like gold and dirt. When miners dig for gold (talc), they typically get lots of dirt (asbestos) as well. The asbestos-laced talc contaminates talcum powder and other cosmetic products, not to mention everyday products as well, such as plastics and crayons.
Pleural Thickening: Toxins also cause inflammation, and specifically inflammation of the pleural lining around the lungs. Prolonged exposure to asbestos causes inflammation in the plural linings that could almost literally crush the lungs. Pleural thickening could be a temporary condition that goes away on its own or a fatal condition. This extreme disparity makes this condition difficult to treat.
Back in the day, doctors believed that occupational exposure was the only asbestos exposure risk. Now, they know better.
Since asbestos fibers have jagged edges, they easily cling to almost any surface, such as clothes or hair. So, asbestos workers often unwittingly carried these fibers home, where they infected friends and loved ones. Researchers estimate that about one in five asbestos exposure cases involves such indirect exposure, and even that number might be an underestimate.
Furthermore, since asbestos fibers float, man-made and natural disasters spread these fibers for miles.
The 9/11 attack on New York City is a good example. The cloud of dust, smoke, and debris that covered much of the Big Apple was laced with asbestos. Since the aforementioned illnesses have such long latency periods, it may be at least mid-century before the full health effects of this attack become clear.
If you may be at risk for any asbestos exposure illness, we urge you to get tested. Only specific kinds of tests detect mesothelioma and other risks. If your doctor refuses to perform such tests, it may be time to find a new doctor. Testing could literally be a matter of life and death.