Posted on April 22nd, 2020 by James L. McCrystal, Jr.James L. McCrystal, Jr.

Earlier this month the Environmental Protection Agency published a draft Risk Evaluation for Asbestos. This was done because asbestos is one of the first ten chemicals selected by EPA to undergo risk evaluation under TSCA (Toxic Substances Control Act). EPA’s risk evaluation of asbestos discusses a handful of very limited, still ongoing, uses in the United States, which historically have been regarded as the cause of a considerable amount of asbestos personal injury litigation throughout the country:

  • Asbestos diaphragms
  • Sheet gaskets
  • Oilfield brake blocks
  • Aftermarket automotive brakes/linings
  • Other vehicle friction products
  • Other gaskets

These uses continue because the importation of such asbestos containing products is not banned.

The EPA released for comment a draft report which finds:

Occupational Conditions of Use that Present an Unreasonable Risk to Health

  • Processing and Industrial use of Asbestos Diaphragms in Chlor-alkali Industry
  • Processing and Industrial Use of Asbestos-Containing Sheet Gaskets in Chemical Production
  • Industrial Use and Disposal of Asbestos-Containing Brake Blocks in Oil Industry
  • Commercial Use and Disposal of Aftermarket Automotive Asbestos-Containing Brakes/Linings
  • Commercial Use and Disposal of Other Vehicle Friction Products
  • Commercial Use and Disposal of Other Asbestos-Containing Gaskets

 Consumer Uses and Disposal that Present an Unreasonable Risk to Health

  •  Aftermarket Automotive Asbestos-Containing Brakes/Linings
  • Other Asbestos-Containing Gaskets

The only use of asbestos analyzed in this study which was not found to present an unreasonable risk to health was the use of asbestos containing brakes in NASA’s Super Guppy airplane which transports large components intended for use in outer space.

EPA’s determination of unreasonable risk for the conditions of use of chrysotile asbestos is based on health risks to workers, occupational non-users (exposed to asbestos indirectly by being in the same  work area), consumers, and bystanders (exposed indirectly by being in the same vicinity where consumer uses are carried out).

As a part of this rule making process a peer review meeting was scheduled for next week, but it is being rescheduled. The public written comment period continues through June 2, 2020. Unless there are changes made to that report, asbestos uses in products not covered by the 1989 partial ban or the April 2019 final rule will be banned.

If this occurs, we expect plaintiffs in asbestos litigation will make every effort to bring these findings to the attention of the public through advertising and they will try to bring these findings into the court rooms during trial. If their efforts are successful, the defense of asbestos cases will be more challenging.

The draft report relies upon a re-analysis of research done by experts who have been active in asbestos litigation for both plaintiffs and defendants and other research relied upon by expert witnesses during their testimony.

Click on this link to find copies of the draft report and supporting documentation: Draft Risk Evaluation for Asbestos  Because of the uncertainty of when the peer review meeting will be held, it is unclear how when the EPA will conclude its deliberations and when it will issue its final action.  We will continue to monitor this and will update this posting when necessary.