Asbestos Law in the US

Considered to be an ideal construction material, in the 19th century and early 20th century, asbestos was known to have high electrical resistance, an excellent fire retardant material and is something which is very inexpensive.

Asbestos contains materials that when disturbed or damaged by repair or remodeling, including demolition activities, becomes airborne and when inhaled can cause significant damage to the lungs and cause health problems. This is because of the size of asbestos fibers making it impossible for the lungs to expel them. Even though public health professionals have been aware of illnesses and deaths that are related to exposure to asbestos for quite some time, it wasn’t until the early 1970s that asbestos gained the attention of the Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA). As these agencies began taking note of existing and developing science and epidemiology, they started to issue safety standards and regulations of the dangerous fiber.

Some of the most common health problems attributed to asbestos are:

Mesothelioma

This is a form of cancer on the lining of the lungs called and chest cavity called mesothelial lining. Mesothelioma has no association with smoking unlike cancer. The only known and established cause for this sickness is exposure to asbestos and other substances having similar fibers.

Cancer

Cancer of the gastrointestinal tract, cancer of the lungs, larynx and kidney cancers have all been linked to exposure to asbestos.

Asbestosis

This sickness is defined by the scarring of the lung tissue from an acid produced by the body’s attempt to break down and dissolve asbestos fibers. This lung disease is commonly found in textile workers, with a latency period of anywhere between 10-20 years depending on the time it takes for the disease to develop.

EPA and OSHA Asbestos Regulations

EPA and OSHA asbestos regulations remained very limited in their reach. In 1979, EPA decided to issue a notice of its intent to control asbestos under the authority of Section 6 of the Toxic Substances Control Act (TSCA). But because a complete ban is achievable under TSCA, the potential for a ban became imminent. Asbestos producers together with the Canadian government began pressuring the Reagan Administration’s Office of Management and Budget (OMB) to stop the progress of EPA’s efforts. Canada took a meticulous interest in the matter for the reason that 95 percent of the 85,000 tons of asbestos used in the United States at the time came from Canada, primarily Quebec.

After 1980, cases related to asbestos have increased dramatically on the U.S. Supreme Court. Since 1986 the Supreme Court has dealt with numerous cases that are related to asbestos.

The U.S. Environmental Protection Agency issued a final rule on July 12, 1989, banning most asbestos-containing products. After spending ten million dollars and conducting a ten year study, EPA accumulated a 100,000 page administrative record, announcing that it would phase out and ban virtually all products containing asbestos (54 Fed. Reg. 29,460 (1989); Stadler, 1993, at 423).* This ban would apply to the manufacturing, importing, processing and distribution of asbestos products. EPA’s grounds for the ban was simple and states: “asbestos is a human carcinogen and is one of the most hazardous substances to which humans are exposed in both occupational and non-occupational settings.” (54 Fed. Reg. 29,460, at 29,468 (1989)).**

This regulation however was overturned by the Fifth Circuit Court of Appeals in New Orleans in 1991. Because of the Court’s decision, products containing asbestos such as roll board, flooring felt, and corrugated, commercial, or specialty paper remain banned. More so, this regulation also continues to ban the use of asbestos in products that have not originally contained the substance, more commonly known as “new uses” of asbestos.

In 1997 and 1999, two large class action settlements came before the Supreme Court. Both settlements were designed to limit liability but ultimately were rejected with the reason that they will exclude future claimants, or those who would later develop illnesses that are related to asbestos. Although several legislative remedies have been considered by the U.S. Congress, including the “Fairness in Asbestos Injury Resolution Act of 2005” they either did not pass or rejected each legislation for different or numerous reasons.