A number of U.S. policymakers have tried to introduce laws to ban the toxic mineral in the country, but they all have failed. As more cases of mesothelioma surface, we can hope that lawmakers finally put an end to using products in America that contain asbestos.
The dangers of asbestos are well known in the U.S. Although few would dispute the major health hazards related to exposure, America does not have a comprehensive federal law addressing the issue. Indeed, sweeping national legislation about asbestos has proved a struggle. Instead, those issues largely are left in the hands of individual states, which often have different approaches to dealing with risks and claims.
Most federal and state asbestos legislation in the U.S. was motivated by the same two concerns: public safety and economic concerns. The evolution of these concerns can be traced back to the early 20th century. By then, use of asbestos in the U.S. had surpassed that of the rest of the world.
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Federal legislation to ensure that claimants can be compensated for sickness, loss of life and loss of wages has also been limited. Federal laws were passed to create compensation systems for other types of claimants. The Black Lung Benefits Act created a program for U.S. coal miners. However, a similar program has not been established for people who are sick because of asbestos exposure.
By the 1930s, medical evidence had already linked exposure with deadly diseases. Although manufacturers knew about the early evidence, many of them did not warn workers or the public about the dangers and potential future health issues. Routine use of asbestos in construction and industrial products continued.
Because related diseases do not surface until decades after exposure, the health hazards created by this exposure did not receive widespread public attention until the late 1960s and the 1970s. That is when victims increasingly hired asbestos lawyers and filed lawsuits against manufacturers for their injuries, claiming those manufacturers knowingly made them sick. Soon, the health risks of asbestos were too big to hide.
Through the late 1980s, much of the attention surrounding asbestos focused on abatement, which involves removing or containing asbestos from existing buildings. There were also calls for laws to ban the use of the toxic mineral. During the 1970s, the U.S. government issued guidelines to limit asbestos exposure. These guidelines were followed by more federal, state and local public safety laws during the 1980s.
U.S. Sen. Patty Murray (D-Wash.) sponsored the Ban Asbestos in America Act of 2007, but it died in Congress. In 2009, she also sponsored a bill that led to recognition of September 26 as National Mesothelioma Awareness Day. Murray, a longtime advocate for asbestos awareness and research, continues to list these issues among her legislative priorities.
Major legislation on asbestos abatement and tort reform have been considered at the federal level. When it comes to asbestos abatement legislation, the U.S. Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA) are the main federal agencies in charge of enforcing these laws.
The EPA and OSHA are instrumental in the evolution of asbestos abatement litigation because both agencies deal with workers, such as those in the construction industry, who often come into contact with asbestos.
One of the biggest threats to those unfairly injured by asbestos exposure is the Furthering Asbestos Claim Transparency (FACT) Act.
It would require asbestos trusts to publicly disclose information about the settlement terms between trusts and claimants. Current state and federal laws consider these negotiations private and confidential, not subject to discovery or admissible in court cases.
The original bill was introduced in the U.S. House of Representatives in 2013. The bill passed and was sent to the U.S. Senate, where a similar bill wasintroduced in 2014. A new congressional session in 2015 archived both versions of the proposals.
However, Rep. Blake Farenthold, R-Texas, introduced a new version (H.R. 526) in the U.S. House in January 2015.
This legislation would add to the pain of all those affected by asbestos-related conditions.
Congress first identified asbestos as a hazardous air pollutant under this law. The Clean Air Act has been amended over the years and resulted in Environmental Protection Agency (EPA) regulations governing the use and disposal of asbestos. The law has been followed by other federal measures to protect workers and the public, such as Consumer Product Safety Act provisions and Occupational Safety and Health Administration (OSHA) regulations. Although asbestos is still used in certain products, its identification as a pollutant has helped reduce use.
The Toxic Substances Control Act (TSCA) gave the EPA the power to regulate not only new commercial chemicals, but also existing materials that pose unreasonable health or environmental risks, such as asbestos. The EPA attempted to use this authority in 1989 by issuing a final rule that would have banned most asbestos-containing products. Known as the "Asbestos Ban and Phaseout Rule," it would have prohibited manufacturing, importing, processing or distributing most of these products.
However, a group of interested corporations successfully challenged the rule in court. A 1991 decision by the U.S. Court of Appeals for the Fifth Circuit eventually rejected much of the rule. The following chart shows which products remained banned under the EPA’s rule and which bans were lifted after the Fifth Circuit’s decision:
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This law ordered the EPA to establish regulatory standards for inspections and proper abatement of asbestos in schools. The EPA’s regulations require all public and private school systems to inspect facilities for asbestos and develop plans for containing and, in rare instances, removing it. The agency also provides guidelines and technical assistance to help school districts.
The U.S. Bankruptcy Code was amended in 1994 to allow companies with significant asbestos liabilities to seek bankruptcy protection for future claims. Sometimes called the "Manville Amendments," the provisions provided an option for manufacturers like the Johns Manville Corporation, which had been sued many times and faced more liabilities in the future. These companies filed for reorganization to protect their assets. Modeled after the Manville Trust, the 1994 amendments established a way for the companies to settle future claims through the creation of special bankruptcy trusts.
The FAIR Act represents Congress’s most comprehensive effort to address the issue of compensation for claimants. Federal lawmakers have introduced multiple versions of the bill in both the House and the Senate during the past decade.
The most recent version was introduced in 2006 and would have done the following:
The FAIR Act never became law.
Like the FAIR Act, multiple versions of the Ban Asbestos in America Act were introduced in Congress during the past decade. The most recent version, introduced in 2007, never became law.
The bill would have done the following:
Joe Lahav is a lawyer and legal advisor at The Mesothelioma Center. He graduated with honors from the University of Florida College of Law in 2000, and he's licensed to practice in Washington, D.C., and Florida. Joe lost his mother to cancer, and he understands the emotional toll mesothelioma can have on families.
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