In many occupational asbestos claims, it has been challenging to establish that asbestos fiber was used in the workplace. That will soon change under recently announced US Environmental Protection Agency [EPA] Rules.
The new EPA asbestos reporting rule requires certain entities that manufactured, imported, or processed asbestos from 2019 to 2022 with annual sales of $500,000 or more to report their asbestos use. The information that must be reported includes:
- The quantity of asbestos manufactured or processed
- The types of use for the asbestos
- Employee data, such as the number of employees exposed to asbestos and the types of work they performed
The rule went into effect on August 24, 2023, and reports must be submitted within six months of the effective date.
The new rule is expected to have a significant impact on employers. It will require them to collect and maintain detailed records of their asbestos use, which can be time-consuming and expensive. Additionally, the rule could lead to increased scrutiny from the EPA, as the agency will have access to more information about asbestos use.
The Catalyst for the Rule
The litigation that brought about the new asbestos reporting rule was a lawsuit filed by the Attorneys General of 14 states and the District of Columbia against the EPA in the U.S. District Court for the Northern District of California. The lawsuit, known as Asbestos Disease Awareness Organization v. Wheeler, 508 F. Supp. 3d 707 - Dist. Court, ND California, 2020, alleged that the EPA had violated the Toxic Substances Control Act (TSCA) by failing to require companies to report their asbestos use. See also, Safer Chemicals, Healthy Families v. US EPA, 943 F. 3d 397 - Court of Appeals, 9th Circuit 2019.
In 2022, the EPA agreed to a settlement with the plaintiffs and agreed to promulgate a rule requiring companies to report their asbestos use from 2019 to 2022. The rule was published in the Federal Register in May 2022 and went into effect on August 24, 2023. Asbestos Reporting and Recordkeeping Requirements Under the Toxic Substances Control Act (TSCA), 88 FR 47782 (July 25, 2023).
The new asbestos reporting rule is a significant victory for the plaintiffs in Asbestos Disease Awareness Organization v. EPA and for the public health community. The rule will help to ensure that the EPA has the information it needs to track asbestos use and to protect workers and the public from asbestos exposure.
Asbestos Fiber and Causal Relationship
Asbestos, a known carcinogen cancer-causing agent, still is not banned in the United States. The naturally occurring mineral has been used in products for its insulating properties for decades. Despite the long legacy of severe and fatal claims, including lung cancer and mesothelioma, brought within the workers’ compensation system, the substance is still being used in products, and exposure continues from asbestos already in place in occupational settings.
Short duration and limited dose exposures to asbestos have been recognized by the courts to be sufficient to establish the causal relationship between occupational exposure and an ARD. Gelman, Jon L., NJ Supreme Court Enhances Workplace Safety and Adopts an Updated Standard to Medical Causation, Workers' Compensation Blog, July 3, 2022),
Workers’ Compensation - Proof of the Presence of Asbestos Fiber
Proving the existence of asbestos on the job site has often been difficult. Other than asbestos factory workers, where it is evident that asbestos was in the workplace, injured workers and their families have had to engage in a tedious discovery process to establish that asbestos fiber was present in the work environment. In many cases, the products being manufactured have a minor but fatal concentration of fiber in the product being manufactured, such as brake blocks for oil drilling, automotive brakes, other friction products, gaskets and packing, cement products, diaphragms for use in manufacturing chlorine and sodium hydroxide production, wallboard and floor tiles, window caulking, recycled asphalt shingle scrap, adhesive mastic, and woven fabric products.
The long latency between exposure and the manifestation of an asbestos-related disease [ARD] and the physical invoices may be challenging to retrieve.
The EPA reporting rule will require an employer to report and classify the data for formal recording by the EPA. Endless pre-trial discovery may be avoided by obtaining the employer’s admission in the asbestos reporting documents to the EPA.
Jon L. Gelman of Wayne, NJ, is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise Modern Workers’ Compensation Law (Thomson-Reuters). For over five decades, the Law Offices of Jon L Gelman 1.973.696.7900 email@example.com have represented injured workers and their families who have suffered occupational accidents and illnesses.
Blog: Workers ' Compensation
LinkedIn Group: Injured Workers Law & Advocacy Group
Author: "Workers' Compensation Law" West-Thomson-Reuters