March 14, 2008, Madison, Wisconsin - Following a Thursday ruling by the Wisconsin Supreme Court, tests for the presence of asbestos in building materials have new and more rigorous standards.

The case is State of Wisconsin v. Harenda Enterprises, Inc., in which the Supreme Court overturned a Court of Appeals ruling about the correct method for determining the presence of asbestos in multiple layers of building materials.

The Court of Appeals decision determined that the correct method was to average the asbestos levels of multiple layers. The EPA-and the state-disagree. The state argued that asbestos levels of multiple layers of building materials should be treated separately rather than averaged.

In addition, the state argued that the Court of Appeals relied on an ambiguous state statute when making the original ruling to average the asbestos levels. According to the state, the statute could be interpreted both ways.

And, in fact, it seems that it was interpreted both ways by the Wisconsin Supreme Court itself, as the decision to go with the EPA interpretation was not unanimous.

Justice Anne Walsh Bradley said that the EPA’s interpretation of the guidelines was not inconsistent with the statute, and was not obviously erroneous. Justice Bradley also said that clarifications of the statute were permissible because they constituted a valid interpretation.

However, Justices Annette Kingsland Ziegler, Patience Drake Roggensack, and David T. Prosser all disagreed with upholding the EPA interpretation of the guidelines.

Justice Ziegler said that the EPA’s clarifications of the state rule did not actually help clarify matters, and further said they were contrary to the rule. Ziegler also said that the EPA’s clarifications meant that changing the current testing methods substantially, and concluded that the State’s motion to change the ruling should not have been granted.

Despite the split, the decision was made to change the guidelines. With those supporting the EPA’s guidelines being in the majority, the Wisconsin Supreme Court has ruled that the EPA guidelines should be used.

This means that rather than averaging values for layers of building materials is no longer the legal method of determining asbestos levels. The EPA guidelines must now be used instead.

While this means more meticulous testing will be required, it also means that asbestos levels calculated for multiple layers building materials should be more accurate, as high values of individual layers can no longer be “masked” by low values of other layers.

This entry was posted on Monday, March 17th, 2008 at 5:16 pm and is filed under Asbestos Exposure, Asbestos Litigation, Wisconsin. You can follow any responses to this entry through the RSS feed. Responses are currently closed, but you trackback from your own site.