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Asbestos and Mesothelioma


During the twentieth century the United States imported and consumed about 27 million tons of Canadian asbestos, the peak of consumption was 1973 with more than 800,000 tons used. Asbestos consumption in the United States declined during the 1980s before "dramatically" dropping from more than 350,000 tons annually to a few tons per year. From a practical point of view it can be considered that asbestos is no longer used in the United States.

However, the situation in the United States concerning the prohibition / authorization of asbestos is legally complex. Asbestos is practically no longer used but not totally prohibited; In particular the US Senate voted on October 4, 2007 (unanimously!) A law banning the import and use of asbestos, but this law has not been ratified by the administration of President G. W. Bush. Similarly, the 1989 regulations of the Environmental Protection Agency (EPA), which wanted to ban asbestos, were partly annulled by a court of appeal in 1991.

Since the mid-1970s, a wave of lawsuits has swept the United States against manufacturers of asbestos products. It is not exaggerated to say that it is the proliferation of claims for bodily injury that has forced manufacturers to stop using asbestos in the United States.

The peculiarity of the United States is that the health authorities have not been able to carry out a policy of prevention of asbestos-related diseases, mainly through inadequacy of general legislation and a catastrophic court decision in 1991 , Amply described below. The paradox is that two of the US jurisdictions seem to contradict each other: while civil justice condemns and continues to condemn industrialists to billions of dollars in compensation for asbestos victims, administrative justice has prevented health agencies, Environmental Protection Agency (EPA) to regulate more severely and to ban asbestos.mesothelioma lawyer

Lexicon of American organizations:

EPA = Environment Protection Agency
OSHA = Occupational Safety and Health Administration
NIOSH = National Institute for Occupational Safety and Health

1. HISTORY OF PROTECTIVE LEGISLATION TO ASBESTOS IN THE UNITED STATES

- 1970: Publication of the Clean Air Act. In particular, the Clean Air Act requires the Health, Education and Welfare Department to publish a list of hazardous pollutants in the air. Asbestos is one of the top three substances on the list. Manufacturers will try in vain to have asbestos removed from the list of hazardous products.

- 1971: First regulation of OSHA. The Occupational Health and Safety Authority now controls the processing plants. The flocking process is banned in several major cities and the EPA proposes to extend this ban to the entire country.

- 1974: First effects on the asbestos industry. The cost of compliance with the new regulations is one of the motives announced by GAF Corporation to abandon the asbestos industry and close its two mines in California. On 15 October the Supreme Court of the United States upheld the Borel v. Fibreboard paper products Corporation which establishes the liability of producers and sellers of asbestos products.

- 1976: Publication of the Toxic Substance Control Act. The Toxic Substances Control Act is signed by the President of the United States on October 11. The three main specific chapters are asbestos, lead and radon. mesothelioma attorney

The exposure limit value for workers is lowered from 5 f / cc to 2 f / cc; OSHA proposes as 0.5 f / cc standard and NIOSH recommends 0.1 f / cc.

- 1978: Awareness campaign on the risks related to asbestos. The Department of Health, Education and Welfare launches a program to raise awareness of the dangers of asbestos by writing to 400,000 doctors; The Environment Protection Agency (EPA) announces a procedure to develop actions and regulations.asbestos cancer life expectancy

- 1979: The EPA is considering the ban. The ban on asbestos is referred to by the EPA as an alternative "if the assessment of risks to human health and the economic impact shows that the main uses of asbestos pose unreasonable risks"mesothelioma personal injury lawyers

- 1980: Launch of Cancer Policy. The Occupational Safety and Health Administration (OSHA) publishes its Cancer policy, which states that exposure to Category I carcinogens "shall be lowered to the lowest level And where substitute products exist, no occupational exposure will be permitted. "

- 1982: Asbestos-in-school-building rule The EPA publishes its Regulation on Asbestos in Schools (Primary and Secondary). It provides for the identification of all friable materials containing asbestos; The results of the inspection must be communicated to the associations of teachers and parents of pupils; The location of the materials must be notified to the employees, with intervention procedures for maintenance.

Asbestos giant Johns-Manville Co. announces that it is seeking protection from the bankruptcy law to protect itself from the tens of thousands of civil claims it faces.mesothelioma settlement amounts

- 1985: The draft ban on asbestos is submitted to the government. The EPA is submitting to the government a proposal to immediately ban most building materials containing asbestos.
- 1986: The EPA announces its proposed ban on asbestos, referring to the Toxic Substance Control Act. The government signs the Asbestos Hazard Emergency Response Act (AHERA). At the same time, OSHA is strengthening its regulations regarding workers' exposure to asbestos dust.
- 1989: EPA prohibits asbestos in the United States. The ban will be graduated in three stages (1990, 1993 and 1996) and completed in 1997. US and Canadian manufacturers are turning to justice to try to reverse this decision.
- 1991: Invalidation by the 5th circuit of the Court of Appeal of New Orleans.......mesothelioma attorney assistance

The Canadian and American asbestos manufacturers, the Government of Canada, the Province of Quebec, the Asbestos Institute (Montreal) and others are joining forces for the same cause: Asbestos in the United States. In a well-known judgment "Corrosion Proof Fittings (and others) against EPA" the judges of the Court of Appeal partially correct them. The judges do not question the dangerousness of asbestos or even the fact that the use of asbestos poses an unreasonable risk but consider that the EPA does not provide proof that the prohibition is The reasonable solution with the least burdensome burden. mesothelioma lawyer asbestos cancer lawsuit

This court ruling is a huge victory for US and Canadian industrialists, and a tragedy for public health in the United States and, in turn, worldwide, whose repercussions continue to be felt today.lawsuit mesothelioma

- 1993: New restrictions on the use of asbestos. After 10 years of consultations and stacking of reports, the EPA has lost much of the benefits of its work on safety and health: most applications of asbestos are, at least theoretically, again permitted , Even mining and flocking (there will be no flocking, but the last American mine will only close in 2003). The agency nevertheless continues to issue regulations by publishing, on November 5, "Factual determinations: Continuing restrictions on certain asbestos-containing products".

- 1999: Clarification by the EPA of the regulations in force The situation is confused: on the one hand the industrialists abandon the trade of asbestos because of the condemnations in compensation, on the other they claim before the Courts that their use Of asbestos is authorized. The EPA intervenes by publishing a "clarification" on the list of prohibited products.mesothelioma law firm


2007: Ban Asbestos in America Act. On November 9, 2007, the US Senate unanimously passed a Ban Asbestos in America Act. The purpose of the law is to stop the import, manufacture and distribution of products containing asbestos in the United States. However, this law will not be ratified by the Bush administration.asbestos mesothelioma lawyers

2011: a chemical safety law is proposed. Senator Lautenberg introduced a proposal to reform the Toxic Substance Control Act by introducing the Safe Chemicals Act; The essential point is that, in the event of a dispute between the administration and the industry, the burden of proof is carried over to the latter. It seems clear that if this law is ratified, the EPA can finally ban asbestos in the USA.

2. THE DECISION OF THE COURT OF APPEAL OF THE FIRST CIRCUIT TO PARTIALLY INVALIDATE THE DECISION TO PROHIBIT ASBESTOS (1991)

The judgment of the US Court of Appeals, Fifth Circuit "Corrosion Proof Fittings v. Environmental Protection Agency ", October 1991, was a key date in the history of the asbestos industry 

The 1979 decision of the EPA to gradually ban asbestos was challenged before a Court of Appeal by a US and Canadian coalition that included: mesothelioma trial attorney

- Corrosion Proof Fittings (US company) and others
- Asbestos Information Association 
- Asbestos Cement Association
- Institute of Scrap Recycling Ind., Inc. 
- Caterpillar Tractor Co (Anglo-American company)

- The Canadian Federal Government
- The Province of Quebec, Canada 
- The Asbestos Institute (Montreal)
- The company Cassiar Min. Corp. (Canadian Asbestos Mining Company)

The Court rejected Canadian interventions and references to international trade agreements (GATT, etc.).

The Court accepts the dangerousness of asbestos and the fact that the use of asbestos poses an "unreasonable risk" as defined in the Toxic Substance Control Act.mesothelioma claim

The Court considers, however, that the EPA does not provide evidence that the prohibition is the least burdensome and least burdensome reasonable solution. Moreover, it imposes on the EPA rules that could be described as absurd in order to calculate the benefits "costs / human lives" attributable to the recommended measures. Thus it imposes on the EPA to distinguish the lives immediately saved and the lives saved in the future. In the case of asbestos where a public health measure will bear fruit at least twenty years later, the reasoning of the judges is particularly unsuitable. One of the fund problems is the drafting of the Toxic Substance Control Act that judges interpret as assigning the burden of proof to the EPA. Clearly, industrialists are not asked to prove that their product does not have an adverse effect, but EPA is required to prove exhaustively that there is no reasonable alternative to prohibition.

An interesting parallel to consider is Canada's complaint to the World Trade Organization (WTO) in 1998, against the European Community. Canada wanted to cancel the ban on asbestos.mesothelioma suit


The parallel is all the more relevant given that the Canadian government explicitly lied to the WTO by referring to the judgment of the American Court of Appeal and that the US government also intervened against Canada in the proceedings before the WTO. WTO; In his writings the US government summarizes:

"Contrary to Canada's claims that the EPA was unable to scientifically justify its prohibition and the risks posed by asbestos were not supported by scientific facts, the Court specifically admitted the scientific opinion of the EPA by acknowledging that "asbestos is a toxic substance, and occupational exposure to asbestos dust can lead to mesothelioma, asbestosis and lung cancer." Indeed, in the Minutes of Proceedings, EPA presented, among other things, a number of scientific studies and reports on the health risks of asbestos, including reports and studies Asbestos, Asbestiform Fibers: Non-occupational Health Risks and "Short-term asbestos work exposure and long-term observation" [Airbone Asbestos Health Assessment Update, Report to the United States Consumer Product Safety Commission by the Chronic Hazard Advisory Panel on Asbestos, ...]mesothelioma and asbestos exposure

The Court based its decision on the procedural flaws of the EPA's decision-making process and its own interpretation of the applicable mandatory US risk-benefit weighting rules to enact such rules, and Not on any disagreement with the EPA's conclusions regarding the health hazards of asbestos. Following the forensic referral, the EPA imposed a more limited ban on asbestos-containing products, including a ban on new uses of asbestos. This prohibition remains in force. "

With this judgment manufacturers have gained the right to import an additional 350 000 tonnes of asbestos from 1989 to 2010.

3. WAVE OF INDEMNIFICATION FOR VICTIMS OF ASBESTOS

There have been trials of bodily harm against asbestos manufacturers, including Johns-Manville since at least 1929 [6], but it seems that the first plaintiff to win his case after five years of appeals , Is a denominated Clarence Borel. In October 1974, in a judgment also famous "Borel v. Fibreboard Paper products Corporation "the Supreme Court confirms that producers and distributors of materials containing asbestos are likely to be ordered to pay damages to asbestos-sick workers. This judgment opens a gap in the armor of asbestos manufacturers in which asbestos victims and lawyers rush. The result is a growing flood of complaints, which is set to escalate.asbestos lawyers los angeles

In May 2005, a study by the Rand Institute for Civil Justice found that between 1970 and 2002, 730,000 people filed a lawsuit against asbestos producers and these lawsuits cost companies and their insurance companies $ 70 billion [7]. The same study estimates that 42% of these sums were paid to the complainants, 31% was swallowed up by court costs and 27% went to the plaintiffs' lawyers, and that 73 companies cited in a large number of complaints The bankruptcy law.

The use of bankruptcy was essentially a means for manufacturers to avoid claims and, at best, a way to gain time to restructure and meet demands.

Among the most famous cases are Johns-Manville, an asbestos giant, which operated, among others, the Jeffrey Mine (Asbestos, Canada) from 1905 to 1983. In 1982 Johns-Manville asked Under the protection of bankruptcy.

During the 1990s the insurance company Lloyds has escaped quite closely seems to have a real bankruptcy due to payments related to the civil proceedings against the American producers that the company had insured [8]

In this respect, it should be noted that there is a great disparity in the judgments: if most courts award damages to victims, their amounts may be modest or high-profile; We are very far from a functioning system.

4. BAN ACT VOTED (UNANIMOUSLY) BY THE AMERICAN SENATE

On November 9, 2007, the US Senate unanimously passed a Ban Asbestos in America Act. The purpose of the law is to stop the import, manufacture and distribution of products containing asbestos in the United States.

One would think that this vote was consensual, it is not. In fact the big companies (Johns-Manville, Union Carbide, etc.), which no longer use, in the United States at least, asbestos continue to battle to avoid any binding legislation. Their purpose is twofold:

- the absence of a ban on asbestos in the United States is an advantage to have hands free elsewhere: thus Saint-Gobain was more or less constrained after the ban on asbestos in France, Exploit asbestos in Brazil.
- industrialists do not want a regulation highlighting the dangers of asbestos because of the large number of victims' complaints they face.asbestos cancer life expectancy

The specter of bodily injury lawsuits continues to haunt the leaders of these companies by reaching not their conscience but their financial accounts. Their lobbying with the Bush administration has borne fruit since the law (voted by a half-republican chamber) has not been ratified.

A new hope for reasonable regulation emerged from the Safe Chemicals Act. The main point of this proposal to reform the Toxic Substance Control Act is that, in the event of a dispute between the administration and the industry, the burden of proof is transferred to the latter.

Let us illustrate the paradoxes and contradictions of justice and the American administration with a comparison with the situation in China.

(See Article New restrictions on the use of asbestos in China New restrictions on the use of asbestos in China)

China consumes 560 000 tonnes of asbestos annually and has so far had no concern for the victims; The United States has almost completely stopped using asbestos and is paying billions of dollars in compensation to asbestos victims. However, the use of asbestos is (theoretically) more limited by law in China: for example, asbestos brake pads are now banned in China and (theoretically) permitted in the United States.mesothelioma survival rates

5. THE FALL OF ASBESTOS IMPORTS IN THE UNITED STATES

During the 20th century the United States consumed more than 31 million tons of asbestos (more than 98% of which is chrysotile asbestos); They imported 29.5 million tons of asbestos and produced their own mines just over 3 million tons; They imported 27.4 million tonnes of asbestos from Canada.

The current situation is obviously different:

The last asbestos mine closed in the United States in 2003; The previous year 2000 tons of asbestos had been extracted; Virtually all companies have ceased to use asbestos: in 2010 the US Geological Survey records 820 tons of asbestos imported into the United States.mesothelioma attorneys california

TABLE: Amounts of asbestos used in the United States (in tons) imports of asbestos in the United States, mining production in the United States, world production year by year

(Source: U.S. geological survey, consumption is calculated according to this source as = imports + production - exports, US consumption and world production figures are rounded)


Asbestos consumed
Imported 
Production 
Worldwide production
1910
46 400
48 270
3350
109 000
1920
153 000
152 000
1500
183 000
1930
192 000
189 000
3849
388 000
1940
238 000
223 724
17 396
522 000
1950
728 000
705 253
41 258
1 266 000
1960
709 000
609 495
45 223
2 430 000
1970
728 000
649 402
125 314
3 826 000
1975
697 000
488 567
89 500
4 210 000
1980
358 700
327 296
80 000
4 818 000
1981
349 000
337 618
75 618
4 818 000
1982
247 000
241 737
63 515
4 036 000
1983
217 000
387
69 900
4 178 000
1984
226 000
209 963
57 420
4 103 000
1985
162 000
142 432
53 457
4 248 000
1986
119 000
108 352
53 437
4 032 000
1987
84 000
93 363
50 600
4 227 000
1988
71 000
85 326
18 233
4 322 000
1989
56 000
56 000
17 427
4 325 000
1990
41 000
41 000
20 000
4 000 000
1991
35 000
34 765
20 000
3 487 000
1992
33 000
30 840
15 573
3 271 000
1993
32 000
30 840
13 700
2 775 000
1994
27 000
25 800
10 100
2 250 000
1995
22 000
21 900
9290
2 180 000
1996
21 700
21 600
9550
2 100 000
1997
21 000
20 900
6890
2 150 000
1998
15 800
15 800
7190
1 980 000
1999
15 800
15 800
5260
1 940 000
2000
14 600
14 600
5260
2 000 000
2001
13 000
13 000
5260
1 900 000
2002
6850
6850
2722
2 130 000
2003
4650
4650
2 100 000
2004
1870
1870
2 100 000
2005
2530
2530
2 260 000
2006
2230
2230
1 990 000
2007
1730
1730
2 080 000
2008
1460
1460
2 150 000
2009
869
869
2 070 000
2010
820
820
2 067 000