EPA’s New Asbestos Determination May Upend Decades of Science and Impact Litigation
The word “asbestos” is a term colloquially known as a hazard. Below the surface, though, while the average person knows from television ads that they may be entitled to compensation if they are exposed to asbestos, they almost surely do not know that asbestos is a naturally occurring mineral or the scientific details of the nature of the risks associated with asbestos exposure. Accordingly, trial attorneys are faced with a situation whereby they must assume that jurors carry with them these baseline beliefs and information gaps when litigating cases. The result is the need for attorneys to heavily rely on experts to combat preconceived notions and effectively educate the jury on the technical nuances and development of the science of asbestos hazard classification.
Regulatory agencies have heavily impacted the asbestos litigation given their continuous evaluation of substances and their hazards. With respect to asbestos, history shows regulatory fluctuations on a timeline as science and technology have evolved. In recent history, we have seen changes in how regulators approach certain minerals, including talc, and from these new approaches, positive scientifically founded change may be on the horizon. However, recent regulatory movement concerning the evaluations of potencies of different types of asbestos fibers are ominous signs of regulatory action that could upend what were long-standing consensus opinions from the scientific community often relied on by defendants in the asbestos litigation.
Asbestos – Where Federal Definitions Stand Now
Federal regulations define “asbestos” as a term that collectively or individually refers to six minerals in their asbestiform:
Chrysotile (the asbestiform of the serpentine minerals)
Grunerite asbestos a/k/a amosite (amphibole mineral)
Riebeckite asbestos a/k/a crocidolite (amphibole mineral)
Tremolite asbestos (amphibole mineral)
Anthophyllite asbestos (amphibole mineral)
Actinolite asbestos (amphibole mineral)
There has been a long-standing consensus between OSHA, MSHA, EPA, and CPSC supporting this definition. These six specific minerals are regulated because of their prevalence in commerce. In fact, the word “amosite” comes from the name Asbestos Mines Of South Africa, where the mineral was mined. Deposits of chrysotile, amosite, and crocidolite were heavily mined for their commercial value while anthophyllite, tremolite and actinolite were extracted during mining as intergrowths in these deposits. In their asbestiform, all of these minerals can be crushed into very thin, very durable, and flexible fibers. These characteristics, with particular regard to chrysotile, amosite, and crocidolite, allowed these mineral fibers to be woven and otherwise incorporated into numerous products and equipment to improve resistance to friction, corrosion, and extreme temperatures. While these unique mineralogic characteristics have benefits, they also have disadvantages.
How Asbestos Is Regulated Now
According to OSHA, the unique mineralogic properties of these six minerals in their asbestiform make them resistant to the body’s natural defenses and this bio-persistence can have a carcinogenic effect. However, there is a general consensus among regulators that not every type of fiber had the same potency (i.e., toxicity). Factors that influence the toxicity of a fiber include fiber size, bio-persistence, chemical composition, and particle surface characteristics. These differences have resulted in federal agencies having different definitions of asbestos fibers that they regulate:
EPA definition of an asbestos fiber: ≥ 0.5µ long and Aspect Ratio ≥ 5:1
OSHA definition of an asbestos fiber: ≥ 5.0µ long and Aspect Ratio ≥ 3:1
For context, OSHA’s definition of an asbestos fiber was created for the purpose of creating a safe work environment for employees who may be exposed to airborne asbestos fibers during the course of their workday. EPA purposely defined an asbestos fiber to ensure that an area where asbestos abatement recently occurred was clear of all airborne particles, including, but not limited to asbestos fibers.
The scientific and regulatory communities generally agree that crocidolite and amosite are the most potent of all six minerals, and all the amphibole asbestos minerals were unequivocally more potent than chrysotile. Accordingly, it should take an exposure to a higher dose of chrysotile to induce the same carcinogenic effect that exposure to a lower dose of crocidolite can yield. Nevertheless, OSHA has set one limit for exposure to all asbestos minerals:
0.1 f/cc every 8hrs (fibers/cubic centimeter)
In addition, EPA has placed the following limit on the amount of any asbestos minerals that products may contain:
< 0.01 (1%)
Enforcement of one regulation for airborne asbestos exposures and one regulation for asbestos content in products is effective with respect to the six asbestos minerals in this instance. Regulators have established exposure levels to every type of asbestos that they have determined, through years of public comment and review of decades of scientific literature, that they determined present almost no risk of developing an asbestos-related disease. Treating the six asbestos minerals as a class instead of individually allows for public safety while avoiding unnecessary complications like potential “mixed exposures” to different types of asbestos. This provides objective standards for parties in litigation to use to argue their cases to juries. However, small shifts in this long-standing regulatory framework can have profound implications on litigation.
EPA’s Seismic Shift Under New Risk Evaluation For Asbestos
In March 2020, the EPA issued its new draft Risk Evaluation for Asbestos. The draft Risk Evaluation identifies changes by creating legal obligations for manufacturers and suppliers to report information regarding the hazards of their asbestos and asbestos-containing products prior to importing their asbestos and asbestos-containing products into the United States. However, the EPA’s Risk Evaluation includes a few concerning comments that threaten to upend decades of research and regulatory policies regarding asbestos.
Most significant is the EPA’s Inhalation Unit Risk (IUR) for chrysotile: 0.16 f/cc, which is being proposed because the EPA already assigned a 0.17 f/cc IUR for Libby , MT amphibole and a 0.23 f/cc IUR for mixed asbestos (chrysotile, amosite, and crocidolite). As a threshold issue, IUR’s are an estimate of the upper bound of someone’s cancer risk who has a lifetime (70yrs) of exposure. While an IUR is not an evaluation of the specific risks of mesothelioma or lung cancer, IUR’s should be relative to those specific risk factors. The EPA’s proposed IUR for chrysotile is contrary to numerous studies that show that chrysotile is less potent than the amphibole asbestos minerals by wide margins. The broad sweeping nature of the EPA’s IUR will also diminish the “chrysotile defense” used by defendants in asbestos litigation, which plays out at trial by either demonstrating that the scientific literature shows that chrysotile does not cause mesothelioma or by calculating the level of chrysotile that a plaintiff was exposed to with proof that the exposure level was below the level that science shows is necessary in order to cause disease.
Notwithstanding, the impact on asbestos litigation, blurring the divide between the potency of chrysotile and amphibole asbestos minerals that has been well-established by the scientific and regulatory community for decades, is a major shift in the perceived levels of risk among the different types of asbestos minerals. This could open the door to many questions from the public regarding the credibility and reliability of science and regulators to propose limits based on the risk evaluations of developing disease from exposure to the individual asbestos minerals.
The EPA’s Draft Risk Evaluation for Asbestos (“DRE”) generated significant attention from industrial groups, experts, and various other parties involved in asbestos litigation. All sides have significant issues with the DRE as currently drafted. With the peer review period for the DRE having ended in the first week of June, the EPA was left with more than 75 comments to consider. Many of these comments include critiques from researchers and trade groups that assert that the proposed evaluation overestimates the risk posed by chrysotile and other asbestos-containing products, and flies in the face of decades of industry, scientific, and regulatory debate and consideration.
For now, the ball is in EPA’s court. If the EPA places weight on the comments criticizing the proposed standards, the EPA could choose to undergo a lengthy revision process or withdraw the proposal completely and re-work it. However, on a June 26, 2020 webinar, the EPA noted that pursuant to its obligations under the Toxic Substances Control Act (TSCA) and its evaluation requirements under the TSCA, it is firmly committed
If the agency follows the advice of SACC members and public commenters alike, its DRE for asbestos will likely undergo a length revision process, if not a complete withdrawal and re-work. However, the EPA noted on a June 26, 2020 webinar regarding its ongoing TSCA evaluation that it is firmly committed to publishing a final rule for asbestos exposure by the end of 2020, despite the significant comments it has received. This suggests that the EPA may be prepared to push through its determination in its current form, which will significantly impact the asbestos litigation for years to come.