Well Claimants Clogging System
The American Bar Association states that a growing number of claimants do not, and may never, suffer from asbestos diseases. Because of the fear of a running statute of limitations, many people that are not presently ill file asbestos claims and have had X-rays that show changes 'consistent with' asbestos disease. This 'now or never filing', often pushed by less than experienced mesothelioma lawyers, is clogging the courts and delaying seriously ill claimants from having their cases heard.
To alleviate this problem, for asbestos law the ABA recommends that:
- A clear standard of impairment be implemented.
- The statute of limitations does not start ticking until a person actually becomes ill.
Asbestos Claims 10,000 a Year
According to the Environmental Working Group Action Fund, 10,000 people a year die from asbestos-caused diseases the United States, including one out of every 125 American men who die over the age of 50. Despite this, 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 the September 2004 issue 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 tougher asbestos law to ban the product.
Buyers Beware of Asbestos
Asbestos is not part of the ASTM (American Society for Testing and Materials) E 1527-05 Phase I Environmental Site Assessment (ESA). A Building Survey for Asbestos is 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 this 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.
Asbestos Law Heard by U.S. Supreme Court
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 action 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. Mesothelioma lawyers, victims, and advocates rejoiced over this ruling.
The Amchem Products v. Windsor et al and Ortiz v. Fireboard Corp. rulings addressed the 20-50 year latency period of serious asbestos-related illnesses such as asbestos cancer and mesothelioma..
Fairness in Asbestos Injury Resolution Act
In 2005 Congress considered legislation titled the "Fairness in Asbestos Injury Resolution Act of 2005". The Act would have established a $140 billion trust fund to supplant asbestos and mesothelioma litigation as a means to compensate victims of asbestos and limit liability.
On April 26, 2005, Dr. Philip Landrigan, Professor of Occupational and Environmental Medicine and Chairman of the Department of Community and Preventive Medicine at Mount Sinai School of Medicine, 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 were the American Public Health Association and the Asbestos Workers Union as well as many mesothelioma attorneys.
The bill was never passed during the two-year session in which it was introduced and therefore it never became law.