According to the Environmental Working Group Action Fund, 10,000 people die each year from asbestos-caused diseases in the United States, including one out of every 125 American men who die over the age of 50. The Environmental Protection Agency (EPA) has no general ban on the use of asbestos. However, asbestos was one of the first hazardous air pollutants regulated under Section 112 of the Clean Air Act of 1970, and many applications have been forbidden by the Toxic Substances Control Act (TSCA).
According to a September 2004 of the American Journal of Respiratory and Critical Care Medicine, asbestos is still a hazard for 1.3 million US workers in the construction industry and for workers involved in the maintenance of buildings and equipment.
A Senate Subcommittee of the Health Education Labor and Pensions Committee heard testimony on July 31, 2001, regarding the health effects of asbestos. Members of the public, doctors, and scientists called for the United States to join other countries in a ban on the product.
Asbestos is not part of an ASTM (American Society for Testing and Materials) E 1527-05 Phase I Environmental Site Assessment (ESA). A Building Survey for Asbestos is considered an out-of-scope consideration under the industry standard ASTM 1527-05 Phase I ESA (see ASTM E 1527-05). ASTM Standard E 2356-04 should be consulted by the owner or owners’ agent to determine which type of asbestos building survey is appropriate, typically either a baseline survey or a design survey of functional areas. Both types of surveys are explained in detail under ASTM Standard E 2356-04. Typically, a baseline survey is performed by an EPA (or State) licensed asbestos inspector. The baseline survey provides the buyer with sufficient information on presumed asbestos at the facility, often which leads to reduction in the assessed value of the building (due primarily to forthcoming abatement costs). Note: EPA NESHAP (National Emissions Standards for Hazardous Air Pollutants) and OSHA (Occupational Safety and Health Administration) Regulations must be consulted in addition to ASTM Standard E 2356-04 to ensure all statutory requirements are satisfied, ex. notification requirements for renovation/demolition. Asbestos is not a material covered under CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act ) innocent purchaser defense. In some instances, the U.S. EPA includes asbestos contaminated facilities on the NPL (Superfund). Buyers should be careful not to purchase facilities, even with an ASTM E 1527-05 Phase I ESA completed, without a full understanding of all the hazards in a building or at a property, without evaluating non-scope ASTM E 1527-05 materials, such as asbestos, lead, PCBs, mercury, radon, et al. A standard ASTM E 1527-05 does not include asbestos surveys as standard practice.
In 2010, Washington State passed a ban on hazardous materials in automotive brakes, phasing out asbestos in vehicle brakes, starting in 2014.
Civil litigation
The first lawsuits against asbestos manufacturers were brought in 1929. Since then, many lawsuits have been filed. As a result of the litigation, manufacturers sold off subsidiaries, diversified, produced asbestos substitutes, and started asbestos removal businesses. In June 1982, a retired boiler-maker, James Cavett, won a record award of $2.3 million compensatory and $1.5 million in punitive damages.
The Manville Corporation, formerly the Johns-Manville Corporation, filed for reorganization and protection under the United States Bankruptcy Code in August 1982. At the time, it was the largest company ever to file bankruptcy, and was one of the richest. Manville was then 181st on the Fortune 500, but was the defendant of 16,500 lawsuits related to the health effects of asbestos. The company was described by Ron Motley, a South Carolina attorney, as “the greatest corporate mass murderer in history.” Court documents show that the corporation had a long history of hiding evidence of the ill effects of asbestos from its workers and the public. One of many examples is a memo from Manville’s medical director to corporate headquarters:
- The fibrosis of this disease is irreversible and permanent so that eventually compensation will be paid to each of these men. But, as long as the man is not disabled it is felt that he should not be told of his condition so that he can live and work in peace and the company can benefit by his many years of experience.
By the early 1990s, “more than half of the 25 largest asbestos manufacturers in the US, including Amatex, Carey-Canada, Celotex, Eagle-Picher, Forty-Eight Insulations, Manville Corporation, National Gypsum, Standard Insulation, Unarco, and UNR Industries had declared bankruptcy. Filing for bankruptcy protects a company from its creditors.”
One of the major issues relating to asbestos in civil procedure is the latency of asbestos-related diseases. Most countries have limitation periods to bar actions that are taken long after the cause of action has lapsed. For example, in Malaysia the time period to file a tort action is six years from the time the tort occurred. Due to several asbestos-related actions, countries such as Australia have amended their laws relating to limitations to accumulate starting from time of discovery rather than time when the cause of action accrued.
Future of civil litigation
Asbestos litigation is the longest, most expensive mass tort in U.S. history, involving more than 8,000 defendants and 700,000 claimants. Current trends indicate that the rate at which people are diagnosed with the disease will likely increase through the next decade. Analysts have estimated that the total costs of asbestos litigation in the USA alone will eventually reach $200 to $275 billion.