Asbestos and the law
Encyclopedia
This article concerns asbestos
-related legal and regulatory issues. Litigation related to asbestos injuries and property damages has been claimed to be the longest-running mass tort in U.S. history. Since asbestos-related disease has been identified by the medical profession in the late 1920s, workers' compensation cases were filed and resolved in secrecy, with a flood of litigation starting in the United States in the 1970s, and culminating in the 1980s and 1990s. A massive multi-district litigation (MDL) complex filing has remained pending in the Eastern District of Pennsylvania for over 20 years. As many of the scarring-related injury cases have been resolved, asbestos litigation continues to be hard-fought among the litigants, mainly in individually-brought cases for terminal cases of asbestosis and cancers.
was considered an ideal material for use in the construction industry. It was known to be an excellent fire retardant, to have high electrical resistance, and was inexpensive and easy to use.
The problem with asbestos arises when the fibers become airborne and are inhaled. Because of the size of the fibers, the lungs cannot expel them. They are also sharp and penetrate tissues.
Health problems attributed to asbestos include
Considerable international controversy exists regarding the perceived rights and wrongs associated with litigation on compensation
claims related to asbestos exposure and alleged subsequent medical consequences. Some measure of the vast range of views expressed in legal and political circles can perhaps be exemplified by the two quotes below, the first from Prof. Lester Brickman
, an American legal ethicist
writing in the Pepperdine Law Review, and second, Michael Wills
, a British Member of Parliament
, speaking in the House of Commons
on July 13. 2006:
Although Australia has only a third of the UK's population, its asbestos disease fatalities approximate Britain's of more than 3,000 people per year.
are in the Province of Quebec. They were owned by American and British Corporations until the Quebec government
expropriated (for example) Asbestos Corporation Limited in 1981 from its American parent, General Dynamics
. In the early 1990s all remaining mines and mills were sold by Quebec to the private sector (see for example Mazarin to buy Quebec's stake in asbestos mines 1992) . Quebec was the fifth largest producer in the world as of 2008, behind Russia, China, Kazakhstan, and Brazil (U.S. Geological Survey, Mineral Commodity Summaries, January 2010). Quebec exports 95 percent of its chrysotile
production, mostly to Asia
n and other poor countries. In 1999 the government of Canada went before the World Trade Organization
to challenge, unsuccessfully, the ban on asbestos in France.
(HSE) has promoted rigorous controls on asbestos
handling, based on reports linking exposure to asbestos dust or fibres with thousands of annual deaths from mesothelioma and asbestos-related lung cancer
.
The HSE does not assume that any minimum threshold exists for exposure to asbestos below which a person is at zero risk of developing mesothelioma, since they consider that it cannot currently be quantified for practical purposes; they cite evidence from epidemiological
studies of asbestos exposed groups to argue that even if any such threshold for mesothelioma does exist, it must be at a very low level..
Previously it was possible to claim compensation for pleural plaques caused by negligent exposure to asbestos, on the grounds that although it is in itself asymptomatic, it is linked to development of diffuse pleural thickening, which causes lung impairment. It has been highly contentious, however, as to the probability of pleural plaques developing into pleural thickening or other asbestos related illnesses. On October 17, 2007 this point was clarified by the Law Lords′ ruling that workers who have pleural plaques as a result of asbestos exposure will no longer be able to seek compensation as it does not in itself constitute a disease.
The Control of Asbestos Regulations were introduced in the UK in November 2006 and are an amalgamation of three previous sets of legislation (Asbestos Prohibition, Asbestos Licensing and the Control of Asbestos at Work Regulations) aimed at minimising the use and disturbance of asbestos containing materials within British workplaces. Essentially this legislation bans the import and use of most asbestos products and sets out guidelines on how best to manage those currently in-situ.
http://www.opsi.gov.uk/SI/si2006/20062739.htm
Dutyholders of all non-domestic properties within the UK must establish an asbestos register and a management plan. The definition of "non-domestic" is "a property or structure (commercial, domestic or residential) where work is carried out" the obligation of the duty holder is that such operatives are not exposed to any asbestos based materials during the course of the work, the Asbestos Register states the presence or non presence of asbestos related to the inside and outside of the structure. The exception is where the property age (post-1999 when Chrysotile asbestos was banned) would indicate that such products will not have been used during the construction of the building.
The removal of high-risk asbestos products from non-domestic properties is tightly controlled by the HSE and high-risk products such as thermal insulation must be removed under controlled conditions by licensed contractors. Further guidance on which products this applies to can be found on the HSE website along with a list of licensees.
Action Fund, 10,000 people a year die 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 a 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.
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.
Johns-Manville 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 Johns-Manville's medical director to corporate headquarters:
By the early 1990s, "more than half of the 25 largest asbestos manufacturers in the US, including Amatex, Carey-Canada, Celotex, Eagle-Pitcher Industries, 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.
The controversy over asbestos-related liability issues is reflected by recent press reports and the position taken by the American Bar Association.
reported a test-case ruling in 2005, that allowed thousands of workers to be compensated for pleural plaques. Diffuse or localised fibrosis of the pleura, or pleural plaques, is less serious than asbestosis or mesothelioma, but is also considered a disease closely linked to the inhalation of asbestos. However, insurers claimed the plaques are "simply a marker for asbestos exposure rather than an injury." Mr Justice Holland rejected the insurers' arguments, and counsel for workers hailed the decision as a "victory that puts people before profits." However this decision was reversed by the Court of Appeal. On the 17th October 2007, the House of Lords confirmed the Court of Appeal's decision. Pleural plaques no longer constitute actionable injury in England, Wales and Northern Ireland. The Scottish Government introduced legislation in 2009 to preserve the status of pleural plaques as an actionable injury in Scotland and there are proposals to introduce similar legislation in Northern Ireland .
Insurance companies allege that asbestos litigation has taken too heavy a toll on insurance and industry. A 2002 article in the British Daily Telegraph's Associate quoted Equitas, the reinsurance vehicle which assumed Lloyd's of London's liabilities, which argued that asbestos claims were "greatest single threat to Lloyd's of London
's existence." Of note is that Lloyd's of London had been sued for fraud by its investors, who claimed Lloyd's misrepresented pending losses from asbestos claims.
A turning point has recently come about involving the case of a young 45 year old mother from Southsea, Hampshire, who was exposed to asbestos from her grandfather’s work clothes and now suffers from mesothelioma. As a result, Michelle Campbell has received over £140,000 in compensation for her pain and suffering from the Ministry of Defence, highlighting that the legacy of asbestos will continue and is now capable of affecting a third generation of victims – the grandchildren of former dockyard workers and other men who worked with the deadly substance throughout their careers.
In May 2006, the House of Lords ruled that compensation for asbestos injuries should be reduced where responsibility could not be attached to a single employer. Critics, including trade unions, asbestos groups and Jim Wallace, former justice minister, have condemned the ruling. They said it overturned the traditional Scottish law to such cases, and was a breach of natural justice. As a result of this outcry, the ruling has been overturned by Section three of the Compensation Act 2006
.
In February 2010 a court ruling set a new precedent for Asbestosis
claims. The case, in which widow Della Sabin attempted to claim compensation following her husband's death from Asbestosis, hinged on the issue of how many asbestos fibres must be present in the lungs for a claim to be valid. A research team based at Llandough Hospital initially reported that the minimum amount of fibres that needed to be present for a claim to be valid was 20 million (only 7 million were found in the sample taken from Mrs Sabin's husband Leslie). However, a subsequent US study suggested that, due to the fact that Leslie had lived for more than forty years after his exposure, a large number of fibres would have cleared from his body naturally; had he died twenty years earlier the asbestos count in his lungs would have been about 35 million fibres per gram. The Judge preferred this evidence, and ruled in favour of Mrs Sabin.
settlements, designed to limit liability, came before the Court in 1997 and 1999. Both settlements were ultimately rejected by the Court because they would exclude future claimants, or those who later developed asbestos-related illnesses. See Amchem Products v. Windsor et al. and Ortiz v. Fibreboard Corp. These rulings addressed the 20-50 year latency period of serious asbestos-related illnesses.
Several legislative remedies have been considered by the U.S. Congress but each time rejected for a variety of reasons. In 2005, Congress considered but did not pass legislation entitled the "Fairness in Asbestos Injury Resolution Act of 2005". The Act would have established a $140 billion trust fund in lieu of litigation, but as it would have proactively taken funds held in reserve by bankruptcy trusts, manufacturers and insurance companies, it was not widely supported by both victims and corporations.
On April 26, 2005, Dr. Philip J. Landrigan
, Professor and Chair of the Department of Community and Preventive Medicine at Mount Sinai Medical Center in New York City
, testified before the US Senate Committee on the Judiciary against this proposed legislation. He testified that many of the bill's provisions are unsupported by medicine and would unfairly exclude a large number of people who have become ill or died from asbestos: "The approach to the diagnosis of disease caused by asbestos that is set forth in this bill is not consistent with the diagnostic criteria established by the American Thoracic Society. If the bill is to deliver on its promise of fairness, these criteria will need to be revised." Also opposing the bill are the American Public Health Association and the Asbestos Workers Union.
On June 14, 2006, the Senate Judiciary Committee Committee approved an amendment to the Act which would allow victims of mesothelioma
$1.1M within 30 days of their claim's approval. This version would also expand eligible claimants to people exposed to asbestos from the September 11, 2001 attacks on the World Trade Center, and to construction debris in Hurricanes Katrina and Rita. Ultimately, the bill's reliance on funding from private entities large and small, as well as debate over a sunset provision and the impact on the U.S. Budgetary process caused the bill to fail to leave committee.
Since the bankruptcy filing of Johns-Manville in 1984, many U.S. and U.K. asbestos manufacturers have escaped litigation by filing bankruptcy. Once in bankruptcy, these companies typically are required to fund special "bankruptcy trusts" that pay pennies on the dollar to injured parties. However, these trusts do permit larger numbers of claimants to received some kind of compensation, even if greatly reduced from potential recoveries in the tort system.
Since 2002, the plaintiffs' bar has turned to suing (1) manufacturers of machinery that allegedly required asbestos-containing parts to function properly; (2) owners of premises at which asbestos-containing products were installed (which includes virtually anyone who owned a building prior to 1980); (3) banks that financed ships or buildings where asbestos was installed (on the grounds that no rational lender would take a security interest
in an asset without studying the risks involved); (4) retailers of asbestos-containing products (mostly hardware, home improvement and automotive parts stores); and (5) corporations that allegedly conspired with asbestos manufacturers to deliberately conceal the dangers of asbestos (e.g., MetLife, a well-known insurance company which worked with Johns-Manville
).
Defendants in the first category have contested liability on the grounds that nearly all of them either did not ship asbestos-containing parts with their products at all (that is, asbestos was installed only by end users) or did not sell replacement parts for their own products, and either way cannot be responsible for toxic third-party parts that they did not manufacture, distribute, or sell. In 2008, the Washington Supreme Court
, the first state supreme court
to reach the issue, decided in favor of the defense. The same issue is currently being briefed before the Supreme Court of California
in O'Neil v. Crane Co.
Another area of dispute remains the so-called chrysotile
-defense. Manufacturers of some products containing only chrysotile
fibers claim that this product is not as harmful as amphibole
-containing products. As 95% of the products used in the United States historically were mostly chrysotile, this claim is widely disputed by health officials and medical professionals.
indicted W. R. Grace and Company
and seven top executives on February 5, 2005 for its operations of a vermiculite
mine in Libby
, Montana
. The indictment accused Grace of wire fraud
, knowing endangerment of residents by concealing air monitoring results, obstruction of justice by interfering with an Environmental Protection Agency
(EPA) investigation, violation of the Clean Air Act
, providing asbestos materials to schools and local residents, and conspiracy to release asbestos and cover up health problems from asbestos contamination. The DOJ said 1,200 residents have developed asbestos-related diseases and some have died, and there could be many more injuries and deaths.
The conspiracy charges alone could result in a sentence of five years in prison, a $250,000 fine and three years of supervised release, as well as a $1 million fine per violation by the company.
On June 8, 2006, a federal judge dismissed the conspiracy
charge of "knowing endangerment" because some of the defendant officials had left the company before the five-year statute of limitations had begun to run. The wire fraud charge was dropped by prosecutors in March.
In an appellate decision in September 2007, the government was given leave to reinstate the criminal charges. The same appellate court had earlier, in July, overturned an evidentiary finding that impaired the government's case. The company has already filed notice of a request for a rehearing, and the trial is now expected to begin in the winter of 2007 or spring of 2008.
Asbestos abatement (removal of asbestos) has become a thriving industry in the United States. Strict removal and disposal laws have been enacted to protect the public from airborne asbestos. The Clean Air Act
requires that asbestos be wetted during removal and strictly contained, and that workers wear safety gear and masks. Over the last ten years, the federal government has prosecuted dozens of violations of the Act and violations of Racketeer Influenced and Corrupt Organizations Act
(RICO) related to the operations. Often these involve contractors who hire undocumented workers without proper training or protection to illegally remove asbestos. Contractors who ignore safety regulations in removing asbestos commit an environmental crime that exposes countless people to potentially fatal and excruciatingly painful lung diseases.
W. R. Grace and Company
faces fines of up to $280 million for polluting the town of Libby
, Montana
. Libby was declared a Superfund disaster area in 2002, and the EPA has spent $54 million in cleanup. Grace was ordered by a court to reimburse the EPA for cleanup costs, but the bankruptcy court must approve any payments.
On January 11, 2006, San Diego Gas & Electric Co., two of its employees and a contractor were indicted by a federal grand jury on charges that they violated safety standards while removing asbestos from pipes in Lemon Grove, California. The defendants were charged with five counts of conspiracy, violating asbestos work practice standards and making false statements. The convicted workers faced five-year prison terms and a $250,000 fine for each violation. San Diego Gas & Electric faced fines of $2.5 million.
On December 12, 2004, New York father-and-son owners of asbestos abatement companies were sentenced to the longest federal jail sentences for environmental crimes in U.S. history. The crimes related to a 10-year scheme to illegally remove asbestos. They were convicted on all 18 counts of conspiracy to violate the Clean Air Act and the Toxic Substances Control Act
, and actual violations of the Clean Air Act and Racketeer-Influenced and Corrupt Organizations Act. The RICO counts included obstruction of justice, money laundering, mail fraud and bid rigging, all related to the asbestos cleanup. The son was sentenced to 25 years in prison, forfeiture of $2 million in illegal proceeds from RICO activities, and restitution of $23,039,607 to his victims. The father was sentenced to 17 & 1/2 years in prison, forfeiture of $1.7 million in illegal proceeds, and restitution of $22,875,575 to his victims.
On April 2, 1998, three men were indicted in a conspiracy to use homeless men for illegal asbestos removal from an aging Wisconsin manufacturing plant. Then-US Attorney General Janet Reno
said, "Knowingly removing asbestos improperly is criminal. Exploiting the homeless to do this work is cruel."
Other similar cases can be found at the DOJ website.
Asbestos
Asbestos is a set of six naturally occurring silicate minerals used commercially for their desirable physical properties. They all have in common their eponymous, asbestiform habit: long, thin fibrous crystals...
-related legal and regulatory issues. Litigation related to asbestos injuries and property damages has been claimed to be the longest-running mass tort in U.S. history. Since asbestos-related disease has been identified by the medical profession in the late 1920s, workers' compensation cases were filed and resolved in secrecy, with a flood of litigation starting in the United States in the 1970s, and culminating in the 1980s and 1990s. A massive multi-district litigation (MDL) complex filing has remained pending in the Eastern District of Pennsylvania for over 20 years. As many of the scarring-related injury cases have been resolved, asbestos litigation continues to be hard-fought among the litigants, mainly in individually-brought cases for terminal cases of asbestosis and cancers.
Background
In the late 19th century and early 20th century, asbestosAsbestos
Asbestos is a set of six naturally occurring silicate minerals used commercially for their desirable physical properties. They all have in common their eponymous, asbestiform habit: long, thin fibrous crystals...
was considered an ideal material for use in the construction industry. It was known to be an excellent fire retardant, to have high electrical resistance, and was inexpensive and easy to use.
The problem with asbestos arises when the fibers become airborne and are inhaled. Because of the size of the fibers, the lungs cannot expel them. They are also sharp and penetrate tissues.
Health problems attributed to asbestos include
- AsbestosisAsbestosisAsbestosis is a chronic inflammatory and fibrotic medical condition affecting the parenchymal tissue of the lungs caused by the inhalation and retention of asbestos fibers...
- A lung disease first found in textile workers, asbestosis is a scarring of the lung tissue from an acid produced by the body's attempt to dissolve the fibers. The scarring may eventually become so severe that the lungs can no longer function. The latency period (meaning the time it takes for the disease to develop) is often 10–20 years. - MesotheliomaMesotheliomaMesothelioma, more precisely malignant mesothelioma, is a rare form of cancer that develops from the protective lining that covers many of the body's internal organs, the mesothelium...
- A cancer of the mesothelial lining of the lungs and the chest cavity, the peritoneumPeritoneumThe peritoneum is the serous membrane that forms the lining of the abdominal cavity or the coelom — it covers most of the intra-abdominal organs — in amniotes and some invertebrates...
(abdominal cavity) or the pericardiumPericardiumThe pericardium is a double-walled sac that contains the heart and the roots of the great vessels.-Layers:...
(a sac surrounding the heart). Unlike lung cancer, mesothelioma has no association with smoking. The only established causal factor is exposure to asbestos or similar fibers. The latency period for mesothelioma may be 20–50 years. The prognosis for mesothelioma is grim, with most patients dying within 12 months of diagnosis. - CancerCancerCancer , known medically as a malignant neoplasm, is a large group of different diseases, all involving unregulated cell growth. In cancer, cells divide and grow uncontrollably, forming malignant tumors, and invade nearby parts of the body. The cancer may also spread to more distant parts of the...
- Cancer of the lung, gastrointestinal tract, kidney and larynx have been linked to asbestos. The latency period for cancer is often 15–30 years. http://www.dailytimes.com.pk/default.asp?page=2006%5C06%5C12%5Cstory_12-6-2006_pg6_25 - Diffuse pleural thickening
Considerable international controversy exists regarding the perceived rights and wrongs associated with litigation on compensation
Workers' compensation
Workers' compensation is a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment in exchange for mandatory relinquishment of the employee's right to sue his or her employer for the tort of negligence...
claims related to asbestos exposure and alleged subsequent medical consequences. Some measure of the vast range of views expressed in legal and political circles can perhaps be exemplified by the two quotes below, the first from Prof. Lester Brickman
Lester Brickman
Lester Brickman is a professor at the Benjamin N. Cardozo School of Law of the Yeshiva University and a widely-regarded legal scholar.Brickman is a graduate of Carnegie Mellon University...
, an American legal ethicist
Ethicist
An ethicist is one whose judgment on ethics and ethical codes has come to be trusted by a specific community, and is expressed in some way that makes it possible for others to mimic or approximate that judgement...
writing in the Pepperdine Law Review, and second, Michael Wills
Michael Wills
Michael David Wills, Baron Wills is a British Labour Party politician, who was the Member of Parliament for Swindon North from 1997 to 2010. He was a Minister of State at the Ministry of Justice, a position he held from 29 June 2007....
, a British Member of Parliament
Member of Parliament
A Member of Parliament is a representative of the voters to a :parliament. In many countries with bicameral parliaments, the term applies specifically to members of the lower house, as upper houses often have a different title, such as senate, and thus also have different titles for its members,...
, speaking in the House of Commons
British House of Commons
The House of Commons is the lower house of the Parliament of the United Kingdom, which also comprises the Sovereign and the House of Lords . Both Commons and Lords meet in the Palace of Westminster. The Commons is a democratically elected body, consisting of 650 members , who are known as Members...
on July 13. 2006:
"A review of the scholarly literature indicates a substantial degree of indifference to the causes of this civil justice system failure. Many of the published articles on asbestos litigation focus on transactional costs and ways in which the flow of money from defendants to plaintiffs and their lawyers can be expeditiously and efficiently prioritized and routed. The failure to acknowledge, let alone analyze, the overriding reality of specious claiming and meritless claims demonstrates a disconnect between the scholarship and the reality of the litigation that is nearly as wide as the disconnect between rates of disease claiming and actual disease manifestation".
"Many of those who I see in my surgeries have worked in a number of workplaces and they could have been exposed to asbestos in each of them, but medical science is such that no one can identify which of them it is. As a result, there has been a long and complex history of legal discussion on how to apportion liabilityLegal liabilityLegal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...
. The lawyers and the judiciary have wrestled, rightly and valiantly, with complex and difficult law, but it has created despair for the families whom we represent. Many of my constituentsElectoral districtAn electoral district is a distinct territorial subdivision for holding a separate election for one or more seats in a legislative body...
’ families have been riven by the consequences of litigation in trying to get some compensation for a disease that has been contracted through no fault of theirs. That is cruel and unacceptable."
Regulation and government action
Worldwide, 60 countries (including those in the European Union) have banned the use of asbestos, in whole or in part. Some examples follow.Australia
A nationwide ban on importing and using all forms of asbestos took effect on 31 December 2003. Reflecting the ban, the National Occupational Health and Safety Commission (NOHSC) revised asbestos-related material to promote a consistent approach to controlling exposure to workplace asbestos and to introduce best-practice health and safety measures for asbestos management, control and removal. The ban does not cover asbestos materials or products already in use at the time the ban was implemented.Although Australia has only a third of the UK's population, its asbestos disease fatalities approximate Britain's of more than 3,000 people per year.
Brazil
The São Paulo State law 12.684/07 prohibits the use of any product which utilizes asbestos, this legislation having been formally upheld by the Brazilian Supremo Tribunal Federal.Canada
The only asbestos mines still operating in CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
are in the Province of Quebec. They were owned by American and British Corporations until the Quebec government
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
expropriated (for example) Asbestos Corporation Limited in 1981 from its American parent, General Dynamics
General Dynamics
General Dynamics Corporation is a U.S. defense conglomerate formed by mergers and divestitures, and as of 2008 it is the fifth largest defense contractor in the world. Its headquarters are in West Falls Church , unincorporated Fairfax County, Virginia, in the Falls Church area.The company has...
. In the early 1990s all remaining mines and mills were sold by Quebec to the private sector (see for example Mazarin to buy Quebec's stake in asbestos mines 1992) . Quebec was the fifth largest producer in the world as of 2008, behind Russia, China, Kazakhstan, and Brazil (U.S. Geological Survey, Mineral Commodity Summaries, January 2010). Quebec exports 95 percent of its chrysotile
Chrysotile
Chrysotile or white asbestos is the most commonly encountered form of asbestos, accounting for approximately 95% of the asbestos in place in the United States and a similar proportion in other countries. It is a soft, fibrous silicate mineral in the serpentine group of phyllosilicates; as such, it...
production, mostly to Asia
Asia
Asia is the world's largest and most populous continent, located primarily in the eastern and northern hemispheres. It covers 8.7% of the Earth's total surface area and with approximately 3.879 billion people, it hosts 60% of the world's current human population...
n and other poor countries. In 1999 the government of Canada went before the World Trade Organization
World Trade Organization
The World Trade Organization is an organization that intends to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade , which commenced in 1948...
to challenge, unsuccessfully, the ban on asbestos in France.
France
France banned the use of asbestos in 1997, and the WTO upheld France's right to the ban in 2000. In addition, France has called for a worldwide ban.India
On 21 January 2011, Indian Supreme court refused to ban Asbestos in India. This judgment was passed down for case filed by a NGO on 2004. In spite of all health hazards, Asbestos continues to be used in India widely without any restriction.Italy
Italy fully banned the use of asbestos in 1992 and set up a comprehensive plan for asbestos decontamination in industry and housing.Japan
Japan did not fully ban asbestos until 2004, and so its government has been held responsible for related diseases.New Zealand
In 1984 the import of raw amphibole (blue and brown) asbestos into New Zealand was banned. In 2002 the import of chrysotile (white) asbestos was banned.United Kingdom
The British Government's Health and Safety ExecutiveHealth and Safety Executive
The Health and Safety Executive is a non-departmental public body in the United Kingdom. It is the body responsible for the encouragement, regulation and enforcement of workplace health, safety and welfare, and for research into occupational risks in England and Wales and Scotland...
(HSE) has promoted rigorous controls on asbestos
Asbestos
Asbestos is a set of six naturally occurring silicate minerals used commercially for their desirable physical properties. They all have in common their eponymous, asbestiform habit: long, thin fibrous crystals...
handling, based on reports linking exposure to asbestos dust or fibres with thousands of annual deaths from mesothelioma and asbestos-related lung cancer
Lung cancer
Lung cancer is a disease characterized by uncontrolled cell growth in tissues of the lung. If left untreated, this growth can spread beyond the lung in a process called metastasis into nearby tissue and, eventually, into other parts of the body. Most cancers that start in lung, known as primary...
.
- "At least 4000 people in Great Britain die each year from mesothelioma and asbestos related lung cancer as a result of past exposure to asbestos. Annual numbers of deaths are predicted to go on rising into the next decade."
- The TUC (UK) report cites a figure of 5000 deaths per year. TUC (UK)
The HSE does not assume that any minimum threshold exists for exposure to asbestos below which a person is at zero risk of developing mesothelioma, since they consider that it cannot currently be quantified for practical purposes; they cite evidence from epidemiological
Epidemiology
Epidemiology is the study of health-event, health-characteristic, or health-determinant patterns in a population. It is the cornerstone method of public health research, and helps inform policy decisions and evidence-based medicine by identifying risk factors for disease and targets for preventive...
studies of asbestos exposed groups to argue that even if any such threshold for mesothelioma does exist, it must be at a very low level..
Previously it was possible to claim compensation for pleural plaques caused by negligent exposure to asbestos, on the grounds that although it is in itself asymptomatic, it is linked to development of diffuse pleural thickening, which causes lung impairment. It has been highly contentious, however, as to the probability of pleural plaques developing into pleural thickening or other asbestos related illnesses. On October 17, 2007 this point was clarified by the Law Lords′ ruling that workers who have pleural plaques as a result of asbestos exposure will no longer be able to seek compensation as it does not in itself constitute a disease.
The Control of Asbestos Regulations were introduced in the UK in November 2006 and are an amalgamation of three previous sets of legislation (Asbestos Prohibition, Asbestos Licensing and the Control of Asbestos at Work Regulations) aimed at minimising the use and disturbance of asbestos containing materials within British workplaces. Essentially this legislation bans the import and use of most asbestos products and sets out guidelines on how best to manage those currently in-situ.
http://www.opsi.gov.uk/SI/si2006/20062739.htm
Dutyholders of all non-domestic properties within the UK must establish an asbestos register and a management plan. The definition of "non-domestic" is "a property or structure (commercial, domestic or residential) where work is carried out" the obligation of the duty holder is that such operatives are not exposed to any asbestos based materials during the course of the work, the Asbestos Register states the presence or non presence of asbestos related to the inside and outside of the structure. The exception is where the property age (post-1999 when Chrysotile asbestos was banned) would indicate that such products will not have been used during the construction of the building.
The removal of high-risk asbestos products from non-domestic properties is tightly controlled by the HSE and high-risk products such as thermal insulation must be removed under controlled conditions by licensed contractors. Further guidance on which products this applies to can be found on the HSE website along with a list of licensees.
United States
According to the Environmental Working GroupEnvironmental Working Group
The Environmental Working Group is an American environmental organization that specializes in research and advocacy in the areas of toxic chemicals, agricultural subsidies, public lands, and corporate accountability...
Action Fund, 10,000 people a year die 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
United States Environmental Protection Agency
The U.S. Environmental Protection Agency is an agency of the federal government of the United States charged with protecting human health and the environment, by writing and enforcing regulations based on laws passed by Congress...
) 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
ASTM International
ASTM International, known until 2001 as the American Society for Testing and Materials , is an international standards organization that develops and publishes voluntary consensus technical standards for a wide range of materials, products, systems, and services...
(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
The National Emissions Standards for Hazardous Air Pollutants are emissions standards set by the United States EPA for an air pollutant not covered by NAAQS that may cause an increase in fatalities or in serious, irreversible, or incapacitating illness...
(National Emissions Standards for Hazardous Air Pollutants) and OSHA
Occupational Safety and Health Administration
The United States Occupational Safety and Health Administration is an agency of the United States Department of Labor. It was created by Congress of the United States under the Occupational Safety and Health Act, signed by President Richard M. Nixon, on December 29, 1970...
(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 a 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.
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
Fortune 500
The Fortune 500 is an annual list compiled and published by Fortune magazine that ranks the top 500 U.S. closely held and public corporations as ranked by their gross revenue after adjustments made by Fortune to exclude the impact of excise taxes companies collect. The list includes publicly and...
, but was the defendant of 16,500 lawsuits related to the health effects of asbestos.
Johns-Manville was described by Ron Motley
Ron Motley
Ronald L. Motley is a noted American trial attorney, and a principal of Motley Rice LLC, a Mount Pleasant, South Carolina-based law firm.- Career synopsis :...
, 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 Johns-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-Pitcher Industries, 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.
The future of asbestos civil litigation
Asbestos litigation is the longest, most expensive mass tort in U.S. history, involving more than 6,000 defendants and 600,000 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 billion. The amounts and method of allocating compensation have been the source of many court cases, and government attempts at resolution of existing and future cases.The controversy over asbestos-related liability issues is reflected by recent press reports and the position taken by the American Bar Association.
United Kingdom
Guardian UnlimitedGuardian Unlimited
guardian.co.uk, formerly known as Guardian Unlimited, is a British website owned by the Guardian Media Group. Georgina Henry is the editor...
reported a test-case ruling in 2005, that allowed thousands of workers to be compensated for pleural plaques. Diffuse or localised fibrosis of the pleura, or pleural plaques, is less serious than asbestosis or mesothelioma, but is also considered a disease closely linked to the inhalation of asbestos. However, insurers claimed the plaques are "simply a marker for asbestos exposure rather than an injury." Mr Justice Holland rejected the insurers' arguments, and counsel for workers hailed the decision as a "victory that puts people before profits." However this decision was reversed by the Court of Appeal. On the 17th October 2007, the House of Lords confirmed the Court of Appeal's decision. Pleural plaques no longer constitute actionable injury in England, Wales and Northern Ireland. The Scottish Government introduced legislation in 2009 to preserve the status of pleural plaques as an actionable injury in Scotland and there are proposals to introduce similar legislation in Northern Ireland .
Insurance companies allege that asbestos litigation has taken too heavy a toll on insurance and industry. A 2002 article in the British Daily Telegraph's Associate quoted Equitas, the reinsurance vehicle which assumed Lloyd's of London's liabilities, which argued that asbestos claims were "greatest single threat to Lloyd's of London
Lloyd's of London
Lloyd's, also known as Lloyd's of London, is a British insurance and reinsurance market. It serves as a partially mutualised marketplace where multiple financial backers, underwriters, or members, whether individuals or corporations, come together to pool and spread risk...
's existence." Of note is that Lloyd's of London had been sued for fraud by its investors, who claimed Lloyd's misrepresented pending losses from asbestos claims.
A turning point has recently come about involving the case of a young 45 year old mother from Southsea, Hampshire, who was exposed to asbestos from her grandfather’s work clothes and now suffers from mesothelioma. As a result, Michelle Campbell has received over £140,000 in compensation for her pain and suffering from the Ministry of Defence, highlighting that the legacy of asbestos will continue and is now capable of affecting a third generation of victims – the grandchildren of former dockyard workers and other men who worked with the deadly substance throughout their careers.
In May 2006, the House of Lords ruled that compensation for asbestos injuries should be reduced where responsibility could not be attached to a single employer. Critics, including trade unions, asbestos groups and Jim Wallace, former justice minister, have condemned the ruling. They said it overturned the traditional Scottish law to such cases, and was a breach of natural justice. As a result of this outcry, the ruling has been overturned by Section three of the Compensation Act 2006
Compensation Act 2006
The Compensation Act 2006 is an Act of the Parliament of the United Kingdom, introduced in response to concerns about a growing compensation culture but conversely to ensure that the public received dependable service from claims management companies...
.
In February 2010 a court ruling set a new precedent for Asbestosis
Asbestosis
Asbestosis is a chronic inflammatory and fibrotic medical condition affecting the parenchymal tissue of the lungs caused by the inhalation and retention of asbestos fibers...
claims. The case, in which widow Della Sabin attempted to claim compensation following her husband's death from Asbestosis, hinged on the issue of how many asbestos fibres must be present in the lungs for a claim to be valid. A research team based at Llandough Hospital initially reported that the minimum amount of fibres that needed to be present for a claim to be valid was 20 million (only 7 million were found in the sample taken from Mrs Sabin's husband Leslie). However, a subsequent US study suggested that, due to the fact that Leslie had lived for more than forty years after his exposure, a large number of fibres would have cleared from his body naturally; had he died twenty years earlier the asbestos count in his lungs would have been about 35 million fibres per gram. The Judge preferred this evidence, and ruled in favour of Mrs Sabin.
Brazil
In June 2008, the Brazilian Supremo Tribunal Federal (STF), voted to maintain the law (12.684/07) which prohibits the use of any product which utilizes asbestos in São Paulo State. It is expected that the decision will be extended to include the whole country.United States
Asbestos-related cases increased significantly on the U.S. Supreme Court docket after 1980. The Court has dealt with several asbestos-related cases since 1986. Two large class actionClass action
In law, a class action, a class suit, or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued...
settlements, designed to limit liability, came before the Court in 1997 and 1999. Both settlements were ultimately rejected by the Court because they would exclude future claimants, or those who later developed asbestos-related illnesses. See Amchem Products v. Windsor et al. and Ortiz v. Fibreboard Corp. These rulings addressed the 20-50 year latency period of serious asbestos-related illnesses.
Several legislative remedies have been considered by the U.S. Congress but each time rejected for a variety of reasons. In 2005, Congress considered but did not pass legislation entitled the "Fairness in Asbestos Injury Resolution Act of 2005". The Act would have established a $140 billion trust fund in lieu of litigation, but as it would have proactively taken funds held in reserve by bankruptcy trusts, manufacturers and insurance companies, it was not widely supported by both victims and corporations.
On April 26, 2005, Dr. Philip J. Landrigan
Philip J. Landrigan
Philip J. Landrigan, M.D., M.Sc., is an American epidemiologist and pediatrician and one of the world's leading advocates of children's health....
, Professor and Chair of the Department of Community and Preventive Medicine at Mount Sinai Medical Center in New York City
New York City
New York is the most populous city in the United States and the center of the New York Metropolitan Area, one of the most populous metropolitan areas in the world. New York exerts a significant impact upon global commerce, finance, media, art, fashion, research, technology, education, and...
, testified before the US Senate Committee on the Judiciary against this proposed legislation. He testified that many of the bill's provisions are unsupported by medicine and would unfairly exclude a large number of people who have become ill or died from asbestos: "The approach to the diagnosis of disease caused by asbestos that is set forth in this bill is not consistent with the diagnostic criteria established by the American Thoracic Society. If the bill is to deliver on its promise of fairness, these criteria will need to be revised." Also opposing the bill are the American Public Health Association and the Asbestos Workers Union.
On June 14, 2006, the Senate Judiciary Committee Committee approved an amendment to the Act which would allow victims of mesothelioma
Mesothelioma
Mesothelioma, more precisely malignant mesothelioma, is a rare form of cancer that develops from the protective lining that covers many of the body's internal organs, the mesothelium...
$1.1M within 30 days of their claim's approval. This version would also expand eligible claimants to people exposed to asbestos from the September 11, 2001 attacks on the World Trade Center, and to construction debris in Hurricanes Katrina and Rita. Ultimately, the bill's reliance on funding from private entities large and small, as well as debate over a sunset provision and the impact on the U.S. Budgetary process caused the bill to fail to leave committee.
Since the bankruptcy filing of Johns-Manville in 1984, many U.S. and U.K. asbestos manufacturers have escaped litigation by filing bankruptcy. Once in bankruptcy, these companies typically are required to fund special "bankruptcy trusts" that pay pennies on the dollar to injured parties. However, these trusts do permit larger numbers of claimants to received some kind of compensation, even if greatly reduced from potential recoveries in the tort system.
Since 2002, the plaintiffs' bar has turned to suing (1) manufacturers of machinery that allegedly required asbestos-containing parts to function properly; (2) owners of premises at which asbestos-containing products were installed (which includes virtually anyone who owned a building prior to 1980); (3) banks that financed ships or buildings where asbestos was installed (on the grounds that no rational lender would take a security interest
Security interest
A security interest is a property interest created by agreement or by operation of law over assets to secure the performance of an obligation, usually the payment of a debt. It gives the beneficiary of the security interest certain preferential rights in the disposition of secured assets...
in an asset without studying the risks involved); (4) retailers of asbestos-containing products (mostly hardware, home improvement and automotive parts stores); and (5) corporations that allegedly conspired with asbestos manufacturers to deliberately conceal the dangers of asbestos (e.g., MetLife, a well-known insurance company which worked with Johns-Manville
Johns-Manville
Johns Manville is an American corporation based in Denver, Colorado that manufactures insulation, roofing materials, and engineered products. The stock was included in the Dow Jones Industrial Average from January 29, 1930 to August 27, 1982 when it was replaced by American Express. Berkshire...
).
Defendants in the first category have contested liability on the grounds that nearly all of them either did not ship asbestos-containing parts with their products at all (that is, asbestos was installed only by end users) or did not sell replacement parts for their own products, and either way cannot be responsible for toxic third-party parts that they did not manufacture, distribute, or sell. In 2008, the Washington Supreme Court
Washington Supreme Court
The Washington Supreme Court is the highest court in the judiciary of the U.S. state of Washington. The Court is composed of a Chief Justice and eight Justices. of the Court are elected to six-year terms...
, the first state supreme court
State supreme court
In the United States, the state supreme court is the highest state court in the state court system ....
to reach the issue, decided in favor of the defense. The same issue is currently being briefed before the Supreme Court of California
Supreme Court of California
The Supreme Court of California is the highest state court in California. It is headquartered in San Francisco and regularly holds sessions in Los Angeles and Sacramento. Its decisions are binding on all other California state courts.-Composition:...
in O'Neil v. Crane Co.
Another area of dispute remains the so-called chrysotile
Chrysotile
Chrysotile or white asbestos is the most commonly encountered form of asbestos, accounting for approximately 95% of the asbestos in place in the United States and a similar proportion in other countries. It is a soft, fibrous silicate mineral in the serpentine group of phyllosilicates; as such, it...
-defense. Manufacturers of some products containing only chrysotile
Chrysotile
Chrysotile or white asbestos is the most commonly encountered form of asbestos, accounting for approximately 95% of the asbestos in place in the United States and a similar proportion in other countries. It is a soft, fibrous silicate mineral in the serpentine group of phyllosilicates; as such, it...
fibers claim that this product is not as harmful as amphibole
Amphibole
Amphibole is the name of an important group of generally dark-colored rock-forming inosilicate minerals, composed of double chain tetrahedra, linked at the vertices and generally containing ions of iron and/or magnesium in their structures.-Mineralogy:...
-containing products. As 95% of the products used in the United States historically were mostly chrysotile, this claim is widely disputed by health officials and medical professionals.
Online
The internet has become a highly competitive arena for firms trying to attract new clients. Pay-per-click costs on asbestos and mesothelioma keywords can exceed $65 per click and continually rank amongst the most expensive keywords. The potential payout for affiliates serving mesothelioma and asbestos ads has created a niche for spammers and webmasters who target search engines.W. R. Grace and Company
According to the U.S. Department of Justice (DOJ), a federal grand juryGrand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
indicted W. R. Grace and Company
W. R. Grace and Company
W. R. Grace and Company is a Columbia, Maryland, United States based chemical conglomerate.The company has two main divisions, Davison Chemicals and Performance Chemicals. The Davison unit makes chemical catalysts, refining catalysts, and silica-based products that let other companies make...
and seven top executives on February 5, 2005 for its operations of a vermiculite
Vermiculite
Vermiculite is a natural mineral that expands with the application of heat. The expansion process is called exfoliation and it is routinely accomplished in purpose-designed commercial furnaces. Vermiculite is formed by weathering or hydrothermal alteration of biotite or phlogopite...
mine in Libby
Libby, Montana
Libby is a city in and the county seat of Lincoln County, Montana, United States. The population was 2,626 at the 2000 census.-Geography:Libby is located at , along U.S. Route 2....
, Montana
Montana
Montana is a state in the Western United States. The western third of Montana contains numerous mountain ranges. Smaller, "island ranges" are found in the central third of the state, for a total of 77 named ranges of the Rocky Mountains. This geographical fact is reflected in the state's name,...
. The indictment accused Grace of wire fraud
Wire fraud
Mail and wire fraud is a federal crime in the United States. Together, 18 U.S.C. §§ 1341, 1343, and 1346 reach any fraudulent scheme or artifice to intentionally deprive another of property or honest services with a nexus to mail or wire communication....
, knowing endangerment of residents by concealing air monitoring results, obstruction of justice by interfering with an Environmental Protection Agency
United States Environmental Protection Agency
The U.S. Environmental Protection Agency is an agency of the federal government of the United States charged with protecting human health and the environment, by writing and enforcing regulations based on laws passed by Congress...
(EPA) investigation, violation of the Clean Air Act
Clean Air Act
A Clean Air Act is one of a number of pieces of legislation relating to the reduction of airborne contaminants, smog and air pollution in general. The use by governments to enforce clean air standards has contributed to an improvement in human health and longer life spans...
, providing asbestos materials to schools and local residents, and conspiracy to release asbestos and cover up health problems from asbestos contamination. The DOJ said 1,200 residents have developed asbestos-related diseases and some have died, and there could be many more injuries and deaths.
The conspiracy charges alone could result in a sentence of five years in prison, a $250,000 fine and three years of supervised release, as well as a $1 million fine per violation by the company.
On June 8, 2006, a federal judge dismissed the conspiracy
Conspiracy (crime)
In the criminal law, a conspiracy is an agreement between two or more persons to break the law at some time in the future, and, in some cases, with at least one overt act in furtherance of that agreement...
charge of "knowing endangerment" because some of the defendant officials had left the company before the five-year statute of limitations had begun to run. The wire fraud charge was dropped by prosecutors in March.
In an appellate decision in September 2007, the government was given leave to reinstate the criminal charges. The same appellate court had earlier, in July, overturned an evidentiary finding that impaired the government's case. The company has already filed notice of a request for a rehearing, and the trial is now expected to begin in the winter of 2007 or spring of 2008.
Environmental - Asbestos Removal and Cleanup
Clean Air Act
A Clean Air Act is one of a number of pieces of legislation relating to the reduction of airborne contaminants, smog and air pollution in general. The use by governments to enforce clean air standards has contributed to an improvement in human health and longer life spans...
requires that asbestos be wetted during removal and strictly contained, and that workers wear safety gear and masks. Over the last ten years, the federal government has prosecuted dozens of violations of the Act and violations of Racketeer Influenced and Corrupt Organizations Act
Racketeer Influenced and Corrupt Organizations Act
The Racketeer Influenced and Corrupt Organizations Act, commonly referred to as the RICO Act or simply RICO, is a United States federal law that provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization...
(RICO) related to the operations. Often these involve contractors who hire undocumented workers without proper training or protection to illegally remove asbestos. Contractors who ignore safety regulations in removing asbestos commit an environmental crime that exposes countless people to potentially fatal and excruciatingly painful lung diseases.
W. R. Grace and Company
W. R. Grace and Company
W. R. Grace and Company is a Columbia, Maryland, United States based chemical conglomerate.The company has two main divisions, Davison Chemicals and Performance Chemicals. The Davison unit makes chemical catalysts, refining catalysts, and silica-based products that let other companies make...
faces fines of up to $280 million for polluting the town of Libby
Libby, Montana
Libby is a city in and the county seat of Lincoln County, Montana, United States. The population was 2,626 at the 2000 census.-Geography:Libby is located at , along U.S. Route 2....
, Montana
Montana
Montana is a state in the Western United States. The western third of Montana contains numerous mountain ranges. Smaller, "island ranges" are found in the central third of the state, for a total of 77 named ranges of the Rocky Mountains. This geographical fact is reflected in the state's name,...
. Libby was declared a Superfund disaster area in 2002, and the EPA has spent $54 million in cleanup. Grace was ordered by a court to reimburse the EPA for cleanup costs, but the bankruptcy court must approve any payments.
On January 11, 2006, San Diego Gas & Electric Co., two of its employees and a contractor were indicted by a federal grand jury on charges that they violated safety standards while removing asbestos from pipes in Lemon Grove, California. The defendants were charged with five counts of conspiracy, violating asbestos work practice standards and making false statements. The convicted workers faced five-year prison terms and a $250,000 fine for each violation. San Diego Gas & Electric faced fines of $2.5 million.
On December 12, 2004, New York father-and-son owners of asbestos abatement companies were sentenced to the longest federal jail sentences for environmental crimes in U.S. history. The crimes related to a 10-year scheme to illegally remove asbestos. They were convicted on all 18 counts of conspiracy to violate the Clean Air Act and the Toxic Substances Control Act
Toxic Substances Control Act
The Toxic Substances Control Act is a United States law, passed by the United States Congress in 1976, that regulates the introduction of new or already existing chemicals. It grandfathered most existing chemicals, in contrast to the Registration, Evaluation and Authorization of Chemicals ...
, and actual violations of the Clean Air Act and Racketeer-Influenced and Corrupt Organizations Act. The RICO counts included obstruction of justice, money laundering, mail fraud and bid rigging, all related to the asbestos cleanup. The son was sentenced to 25 years in prison, forfeiture of $2 million in illegal proceeds from RICO activities, and restitution of $23,039,607 to his victims. The father was sentenced to 17 & 1/2 years in prison, forfeiture of $1.7 million in illegal proceeds, and restitution of $22,875,575 to his victims.
On April 2, 1998, three men were indicted in a conspiracy to use homeless men for illegal asbestos removal from an aging Wisconsin manufacturing plant. Then-US Attorney General Janet Reno
Janet Reno
Janet Wood Reno is a former Attorney General of the United States . She was nominated by President Bill Clinton on February 11, 1993, and confirmed on March 11...
said, "Knowingly removing asbestos improperly is criminal. Exploiting the homeless to do this work is cruel."
Other similar cases can be found at the DOJ website.
See also
- Amchem Products Inc. v. British Columbia Worker's Compensation BoardAmchem Products Inc. v. British Columbia Worker's Compensation BoardAmchem Products Inc. v. British Columbia Worker's Compensation Board, [1993] 1 S.C.R. 897 is a leading decision on forum non conveniens by the Supreme Court of Canada...
- AsbestosAsbestosAsbestos is a set of six naturally occurring silicate minerals used commercially for their desirable physical properties. They all have in common their eponymous, asbestiform habit: long, thin fibrous crystals...
- Asbestos abatementAsbestos abatementMany buildings contain asbestos, which was used in spray-applied flame retardant, thermal system insulation, and in a variety of other materials. Asbestos was sometimes "flocked" above false ceilings, inside technical ducts, and in many other small spaces where firefighters would have difficulty...
- Asbestos Convention, 1986Asbestos Convention, 1986Asbestos Convention, 1986 is an International Labour Organization Convention.It was established in 1986, with the preamble stating:Having decided upon the adoption of certain proposals with regard to safety in the use of asbestos,...- Ratifications :...
- Asbestos fibersAsbestos fibersAsbestos fibers are released from asbestos containing materials . Friable asbestos containing materials release fibers more readily than encapsulated asbestos containing materials.- Determining airborne asbestos fiber levels :...
- Asbestos StrikeAsbestos StrikeThe Asbestos Strike of 1949, based in and around Asbestos, Quebec, Canada, was a four-month labour dispute by the asbestos miners. It has traditionally been portrayed as a turning point in Quebec history that helped lead to the Quiet Revolution...
- AsbestosisAsbestosisAsbestosis is a chronic inflammatory and fibrotic medical condition affecting the parenchymal tissue of the lungs caused by the inhalation and retention of asbestos fibers...
- Celotex Corp. v. CatrettCelotex Corp. v. CatrettCelotex Corp. v. Catrett, 477 U.S. 317 , was a case decided by the United States Supreme Court, written by then-Associate Justice William Rehnquist...
- FibroFibroFibro, the shortened form of "Fibrous Cement" - or "Fibrous Asbestos Cement", FAC, is a building material made of compressed fibres cemented into rigid sheets....
- FireproofingFireproofingFireproofing, a passive fire protection measure, refers to the act of making materials or structures more resistant to fire, or to those materials themselves, or the act of applying such materials. Applying a certification listed fireproofing system to certain structures allows these to have a...
- James HardieJames HardieJames Hardie Industries Ltd. is an industrial building materials company headquartered in Ireland and listed on the Australian Securities Exchange which specialises in fibre cement products. James Hardie manufactures and develops technologies, materials and processes for the production of building...
- List of minerals
- MesotheliomaMesotheliomaMesothelioma, more precisely malignant mesothelioma, is a rare form of cancer that develops from the protective lining that covers many of the body's internal organs, the mesothelium...
- Occupational Illness
- Phase I Environmental Site AssessmentPhase I Environmental Site AssessmentIn the United States, an environmental site assessment is a report prepared for a real estate holding which identifies potential or existing environmental contamination liabilities. The analysis, often called an ESA, typically addresses both the underlying land as well as physical improvements to...
- VermiculiteVermiculiteVermiculite is a natural mineral that expands with the application of heat. The expansion process is called exfoliation and it is routinely accomplished in purpose-designed commercial furnaces. Vermiculite is formed by weathering or hydrothermal alteration of biotite or phlogopite...
- Wittenoom, former asbestos mining townWittenoom, Western AustraliaWittenoom is a ghost town located 1,106 kilometres north-northeast of Perth in the Hamersley Range in the Pilbara region of Western Australia. It is the site of Australia's greatest industrial disaster....
Further reading
- Brodeur, Paul,Outrageous Misconduct.New York, Pantheon, 1985.
- Bowker, Michael, Fatal Deception: The Terrifying True Story of How Asbestos is Killing America Touchstone, 2003
- Schneider, Andrew, An Air That Kills : How the Asbestos Poisoning of Libby, Montana, Uncovered a National Scandal, 2004
- Castleman, Barry, Asbestos: Medical and Legal Aspects, Fifth Edition, Aspen Press, 2005
External links
- World Health Organization report
- Asbestos - National Cancer Institute, USA
- Public Health Guidance: Asbestos, Queensland Govt., Australia
- INRS report, France
- Asbestosis in Germany
- British Government Health and Safety Executive
- British Parliament Publications - Lloyds TSB Gen Insurance Holdings v. Lloyds Bank Group Insurance Co. Ltd.
- Asbestos victims welcome ruling
- “Low-Dose Exposure to Asbestos and Lung Cancer”, American Journal of Epidemiology Vol. 155, No. 11 : 1016-1022
- Health and Safety - Asbestosis (TUC Resources, UK)
- EU Research: Determining the damage caused by asbestos
- Testimony by Dr. Landrigan of Mt Sinai School of Mediine regarding the proposed "Fairness in Asbestos Injury Resolution Act of 2005"