By Gary Anderson

Law360 (April 29, 2020, 5:27 PM EDT) --

Gary Anderson

The dangers of exposure to asbestos, and its connection to mesothelioma and lung cancer, have been known since the material was studied in the 1930s.[1] Even after these initial reports, the fibrous, cancer-causing material was commonly used from the 1950s through the 1970s in building materials, consumer products and automobile parts.

Though the industry was exposed for its known use of the toxic material over 50 years ago, the substance is still being used by manufacturers in certain products such as car and motorcycle brakes.[2] The hazard of the material cannot be understated. In recent years, asbestos exposure has joined the ranks of other dangers, such as guns and car accidents, in causing more than 40,000 deaths annually in the United States.[3]

Despite these statistics showing clearly that something must change, the U.S. government has done very little in response. Not only is asbestos still allowed in certain products, but there has been little or no effort to eliminate existing asbestos use in dangerous locations such as schools, workplaces, homes and other older buildings.[4]

The U.S. Environmental Protection Agency is tasked with evaluating the danger of chemical substances and regulating their use under the Toxic Substances Control Act, or TSCA.[5] Under the TSCA, manufacturers, distributors, processors, importers and exporters of asbestos are subjected to limitations on the use of asbestos or asbestos-containing products.[6] The EPA analyzes the harms of asbestos-containing products via risk evaluations, and promulgates regulations in the form of final rulings based on the risk evaluations.[7]

In 1989, the EPA issued a final rule that attempted to "prohibit future manufacture, importation, processing, and distribution of asbestos in almost all products."[8] However, in Corrosion Proof Fittings v. EPA, the U.S. Court of Appeals for the Fifth Circuit vacated the regulation on several grounds.[9] Primarily, the court ruled that "upon judicial review, [the] burden remains on the Environmental Protection Agency (EPA) to justify that products it bans under Toxic Substances Control Act present unreasonable risks, no matter how regulated."

Thus, the TSCA language that required the EPA to "consider all necessary evidence and … to give adequate weight to statutory language requiring it to promulgate least burdensome, reasonable regulation required to protect environment adequately"[10] was the death knell for the 1989 ban.

Specifically, the court found that when the "EPA rejected calculating how many lives less burdensome regulation would save, and at what cost, and when calculating benefits of its ban, explicitly refused to compare it to improved workplaces in which currently available control technology was utilized,"[11] the EPA did not follow the process required under the TSCA. As a result of this ruling, the piecemeal regulation of asbestos continues to the present.

In April 2019, the EPA issued a final rule preventing asbestos-containing products which are no longer on the market from returning to commerce without prior review by the EPA.[12] The purpose of this rule was to close a "loophole in the regulatory regime for asbestos" and to "prevent former uses of asbestos from being reintroduced into commerce without the EPA being aware and having the opportunity to review."[13]

However, the EPA became embroiled in controversy when The New York Times reported that the agency ignored the advice of its own scientists and lawyers by refusing to ban the import of asbestos.[14] Moreover, agency experts criticized the EPA's decision to discontinue the risk assessment of legacy uses of asbestos.[15]

Legacy use of asbestos mainly refers to the use of asbestos in products and materials prior to regulation, such as older schools, workplaces, homes and cars. This means the EPA is refusing to monitor the material in places that people visit daily, putting a large portion of the population at risk of asbestos exposure. The U.S. Court of Appeals for the Ninth Circuit, in Safer Chemicals, Healthy Families v. U.S. Environmental Protection Agency, ruled that this policy was unlawful in November 2019, but little has changed since the decision.[16]

In March, the EPA released a draft risk evaluation, which, although not final, promulgates preliminary determinations on asbestos risk. The draft risk evaluation indicated that asbestos did not pose unreasonable risks to the environment, but preliminarily found unreasonable risk to workers, occupational nonusers, consumers and bystanders "under certain conditions of use."[17]

Interestingly, the draft risk evaluation indicated that:

the risk evaluation for asbestos evaluated the cancer risk to workers and occupational non-users and consumers and bystanders from inhalation exposures only, and in this risk determination of asbestos, respirator PPE (where present) and its effect on mitigating inhalation exposure was considered.[18]

While some experts have criticized the EPA for limiting the scope of harm in the risk analysis to cancer alone,[19] few have discussed the statement on personal protective equipment, or PPE, in light of the current COVID-19 pandemic.

PPE has become a household acronym since the start of the pandemic, because it is necessary to mitigate risks associated with airborne dangers, including both asbestos and COVID-19. According to the draft risk evaluation in regard to worker risk, "without respiratory PPE the risk estimates indicate risk (central tendency and high-end); however, when expected use of respiratory PPE is considered for some worker tasks … the risk estimates do not indicate unreasonable risk."[20]

Although the EPA classified the risk to workers and consumers as preliminarily unreasonable, this determination was partly due to the fact that "respirator PPE is not worn throughout an entire 8-hour shift" and that consumers generally do not wear PPE.[21] Therefore, in a time where national governments are struggling and scrambling to buy PPE, the EPA's risk evaluation may be understated when considering the projected availability of PPE and other potential harms beside cancer.

Moreover, people diagnosed with mesothelioma and lung cancer often must endure chemotherapy, immunotherapy and surgery. All three treatments leave the immune system compromised, putting mesothelioma and lung cancer survivors particularly at risk for COVID-19 infections. The ongoing pandemic has made the experience of going to a doctor's office or a hospital room a terrifying endeavor. Many mesothelioma and lung cancer victims are afraid to visit their doctor or leave the house for their regular treatment, as coming in contact with someone infected with COVID-19 could prove to be fatal.

Furthermore, pulmonologists have been called in droves to assist both with treating victims of COVID-19 and helping research a possible vaccine to curb the pandemic. Pulmonologists are usually the doctors most directly involved in treating mesothelioma and lung cancer patients. Their work on the frontlines against COVID-19 leaves less care and resources for victims of asbestos exposure.

These developments may increase the number of asbestos victims, and therefore, the amount of asbestos litigation, in the future. For example, an employee previously exposed to asbestos in the workplace may suffer additional harm due to the strained medical system; or a claimant may be negligently exposed to asbestos due to a lack of PPE. Given the long latency period between asbestos exposure and the related injury, it may take many years before litigation arises in such cases. 

However, the lack of PPE may strengthen current claims based on increased risk of future disease or medical monitoring.[22] These issues will most likely turn on the evidentiary burden of proving that the lack of PPE pushed the chance of developing cancer above some threshold amount. Alternatively, an employer or manufacturer may become bankrupt due to the economic effects of COVID-19 and avoid asbestos liability from subsequent claimants.

In In re: Energy Future Holdings Corp., the asbestos victim plaintiff was barred from bringing their claim against a bankrupt corporation, due to the bar date under bankruptcy law.[23] The bar date is a deadline by which all claims against a bankrupt organization must be filed, or are otherwise discharged.

The court recognized the tension between the due process concerns of the latent asbestos claim holders and bankruptcy law which arises out of the long latency period between asbestos injuries and asbestos exposure.[24] However, the U.S. Court of Appeals for the Third Circuit held that:

while holders of latent asbestos claims had a protected property interest … in their ability to pursue asbestos claims … notice of claims bar date received by the holders of latent asbestos claims, together with opportunity to have their claims reinstated for "cause shown" ... satisfied due process.[25]

In sum, the court found that the due process concerns of the latent asbestos claim holders could be satisfied by a showing that (1) "the reinstatement of their claims would pose no 'danger of prejudice' to the debtors"; and (2) a "reason for the delay" or a showing that they would be deprived of due process because they did not have reasonable notice of the bar date.[26] Therefore, it is important for latent asbestos plaintiffs to be aware of the financial status of defendants and the bar dates for claims under bankruptcy laws.

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Gary Anderson is a partner at Environmental Litigation Group PC.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Asbestos History. Mesothelioma Research Foundation of America, https://www.mesorfa.org/exposure/history.php.

[2] Tiffany Hsu and Roni Caryn Rabin, Johnson & Johnson Feared Baby Powder's Possible Asbestos Link for Years, N.Y. Times (Dec. 14, 2018), https://www.nytimes.com/2018/12/14/business/baby-powder-asbestos-johnson-johnson.html.

[3] Endangering Generations: How the Trump Administration's Assault on Science is Harming Children's Health, Center for Science and Democracy at the Union of Concerned Scientists, 6 (Feb. 2020), https://www.ucsusa.org/sites/default/files/2020-02/endangering-generations-report-web-res.pdf.

[4] Id.

[5] Mary Beth Gustafsson et al, § 72:32. Federal and State Environmental Regulatory Laws – Toxic Substances Control Act, 5 Successful Partnering Between Inside and Outside Counsel §72:32 (2020).

[6] Id.

[7] Draft Risk Evaluation for Asbestos, EPA, https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/draft-risk-evaluation-asbestos.

[8] Corrosion Proof Fittings v. EPA , 947 F.2d 1201 (5th Cir., 1991).

[9] Id.

[10] Id.; 15 U.S.C.A. § 2605 (2016).

[11] Id.

[12] EPA Restrictions on Discontinued Uses of Asbestos; Significant New Use Rule, 84 Fed. Reg. 80 (Apr. 25, 2019).

[13] Id.

[14] Tiffany Hsu and Roni Caryn Rabin, Johnson & Johnson Feared Baby Powder's Possible Asbestos Link for Years, N.Y. Times (Dec. 14, 2018). 

[15] Id.

[16] Safer Chemicals, Healthy Families v. U.S. Environmental Protection Agency , 791 Fed. Appx. 653 (9th Cir. 2019).

[17] Draft Risk Evaluation for Asbestos, EPA.

[18] EPA, EPA Doc. # EPA-740-R1-8012, Draft Risk Evaluation for Asbestos at 213 (2020), https://www.epa.gov/sites/production/files/2020-03/documents/1_draft_risk_evaluation_for_asbestos_pub.pdf.

[19] Tiffany Hsu and Roni Caryn Rabin, Johnson & Johnson Feared Baby Powder's Possible Asbestos Link for Years, N.Y. Times (Dec. 14, 2018).

[20] EPA, EPA Doc. # EPA-740-R1-8012, Draft Risk Evaluation for Asbestos at 220 (2020). 

[21] Id.

[22] Daniel J. Penofsky, Asbestos Injury Litigation, 60 Am. Jur. Trials 73 (2020).

[23] In re Energy Future Holdings Corp, 949 F.3d 806 (3d Cir. 2020).

[24] Id.

[25] Id.

[26] Id.

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