Lawsuit against the EPA could affect asbestos litigation

by | Dec 18, 2019 | Asbestos |

Every year, tens of thousands of Americans die due to asbestos-related diseases. Knowing this, in the early 1970s, asbestos insulation & sprayed asbestos materials were banned, and in 1977 asbestos joint compound was banned.  In 1989, the Environmental Protection Agency banned most uses of asbestos, but manufacturers successfully sued and got the ban overturned.  Several attempts to ban asbestos use by Congress have failed to pass.  Therefore, most uses of asbestos are still perfectly legal in the U.S., despite being banned in every other “developed” country.  The United States continues to import hundreds of metric tons of asbestos every year for use in products and industry.

Given how much we know about the dangers of asbestos, you might think importers would need to report the amounts they bring into the United States. You might also think they would have to report where they send the mineral. But they don’t. Accordingly, a nonprofit watchdog has recently sued the EPA to change its rules, and the lawsuit could have major impact for ongoing asbestos cases.

How could better reporting help people suffering from asbestos-related diseases?

The federal Toxic Substances Control Act (TSCA) grants the EPA the authority to regulate asbestos use within the United States. Section 21 of that act allows people or groups to petition for changes to the rules. Accordingly, the Asbestos Disease Awareness Organization (ADAO) petitioned the EPA to change its rules for tracking asbestos imports and distribution. The EPA denied the petition.

As The National Law Review reported, the ADAO challenged the denial of their petition, and that challenge made its way to federal district court. At the time this article was written, the case had not yet been decided. But some of the stakes are already clear. For example:

  • The decision could impact the quality of the EPA’s ongoing asbestos risk assessment. The agency is supposed to complete its report in December, but the ADAO claims that, under current standards, the report will ignore some uses of asbestos.
  • New reporting rules could force more companies to report their asbestos-related activities. This would give the public a better understanding of where people might be exposed to asbestos.
  • As more companies report their ties to asbestos, they could face greater scrutiny. They might be sued and held liable for asbestos-related illnesses.

It is perhaps notable that this lawsuit is taking place while Johnson & Johnson stands accused of exposing women and children to asbestos in its baby powder. And just more than a year after asbestos imports rose by 2,000% the month after the United States signaled it was willing to consider new uses of asbestos.

Should the EPA simply ban asbestos?

While the ADAO’s lawsuit doesn’t seek to ban asbestos, the ADAO makes no secret of its desire to see the substance fully banned.

It is uncertain how the case may go, but it won’t simply be dismissed. The EPA tried to dismiss the case, but a district court ruled against the EPA, ensuring that the ADAO’s case will be heard.

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