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Fighting for Breath: The Need for Asbestos Reform

By Christopher Blicha, Congress Watch Advocacy Intern

This week, groups around the world joined together in the Global Asbestos Awareness Week to educate the public about one of the most toxic substances being used in industry and manufacturing today: asbestos. According to the National Cancer Institute (a division of the National Institutes of Health), “Asbestos is the name given to a group of minerals that occur naturally in the environment as bundles of fibers that can be separated into thin, durable threads.” According to the EPA, asbestos is found in insulation, flooring, roofing, pipe fittings and gaskets, car brakes, and many other products Americans are exposed to on a daily basis.

Quite literally, then, asbestos can be found from floor to ceiling (at least, in some homes).

That may lead you to ask, “Wait, wasn’t asbestos banned?” Unfortunately, for most products, the answer is not any more.

If this news has taken you by surprise, you can at least take comfort in knowing that you’re not alone; given the uncontested scientific understanding is that asbestos is carcinogenic and hazardous to one’s health. According to an analysis by Sonya Lunder of Asbestos Nation, when annual deaths from lung cancer, mesothelioma and asbestos are tallied, the scale of asbestos mortality is staggering. She calculates that from 1999 to 2013, between 11,586 and 15,510 Americans died each year from asbestos-related diseases. That is a huge number, especially when you also take into consideration that, according to Lunder, “A more exact number can’t be pinned down, because asbestos-related deaths are not precisely recorded or reported by public health authorities. Our estimate is conservative.”

With all of this data on the dangers of asbestos, It can come as quite a shock to learn that, after many years of knowing of its harms, the Environmental Protection Agency has been largely unable to fully address the dangers of asbestos.

How is that even possible?

A quick summary is in order.

According to an article by Rebecca Trager of ChemistryWorld that was featured in Scientific American, after it became clear how dangerous asbestos was, “The Toxic Substances Control Act (TSCA) – nicknamed ‘Tosca’ by policy wonks – was passed in 1976 in the US following a string of chemical scares in the late 1960s and early 1970s.” This law was intended to regulate the chemicals used in manufacturing, and ban dangerous substances from being used, in the interests of public health. Things were looking up, since, according to Trager, “…In 1989, most asbestos products were banned but this was overturned in court in 1991 over a lack of evidence to justify such a broad ban.” It would go on to take congress over 20 years before they were able to agree on legislation to update TSCA. So, even though it took far longer than it should have to pass the law and the compromise legislation was much weaker than it should have been, the EPA is finally poised to be in a position to take action on this dangerous substance. Public Citizen and our partners will be watchdogging the EPA to ensure it takes swift action under its new authority to address the dangers of asbestos.

In the meantime, however, a great many people have been adversely affected by their exposure to the dangerous product asbestos, and they have sought compensation for their injuries. After many of the companies that exposed persons to asbestos sought relief in bankruptcy court, special claims trusts were created to speed compensation for victims. Not surprisingly, however, some asbestos businesses are now interested in making it more difficult receive these funds than it needs to be.

In steps the “Furthering Asbestos Claim Transparency (FACT) Act” (formerly standalone bill H.R. 906, the bill was combined with another piece of harmful anti-justice legislation and passed the House in March as H.R. 985). If passed and signed into law, the FACT Act would create unworkable burdens for the claims trusts and keep them from doing their important business. For example, the bill would impose a requirement for trusts to respond to any and all corporate defendants’ information requests. Such a requirement would have the effect of slowing or virtually stopping the ability of trusts to provide compensation for victims. Since patients diagnosed with fatal asbestos-caused diseases like mesothelioma have very short expected lifespans, a delay in justice could leave victims’ next of kin struggling to pay medical and funeral bills.

The FACT Act does nothing to improve the lives of those who face an asbestos death sentence through no fault of their own. Instead, the bill adds insult to injury and inexcusably invades the privacy of victims by requiring public disclosure of personal claim information, including portions of their social security numbers, potentially opening the door to identity theft and discrimination.

Instead of further victimizing asbestos claimants, Congress should pass real transparency legislation requiring companies to publicly disclose activities related to the manufacture, processing, distribution, sales, importation, transport or storage of asbestos or asbestos-containing products (such as by passing the Reducing Exposure to Asbestos Database Act.)

H.R. 985 has already passed in the House; if it passes in the Senate as well, it will mean one more impediment to victims getting the compensation that justice demands they receive. So, as Global Asbestos Awareness Week comes to a close, you can help in the fight to ensure that culpable businesses make restitution to those they’ve harmed. Contact your senators and urge them oppose bills that harm our court system like the FACT Act.