NJ Legislature Bans Asbestos

Both houses of the New Jersey Legislature has made history by passing a bill to ban the sale of asbestos products in the State. The legislation awaits the Governor’s signature. [Editorial Note:  A4416 NJ Leg Session 2018-19 was signed by the Governor  and enacted, Approved P.L. 2019, c.114 on May 10, 2019 - Click Here for Pamphlet Law].

BILL INTRODUCED TO BAN ASBESTOS NOW

Oregon’s Senator Jeff Merkley, along with Congresswoman Suzanne Bonamici (D-OR), Energy and Commerce Chairman Frank Pallone, Jr. (D-NJ), and Congresswoman Elissa Slotkin (D-MI), today introduced the Alan Reinstein Ban Asbestos Now Act of 2019, legislation that would ban the mining, importation, use, and distribution in commerce of asbestos, a known carcinogen, and any asbestos-containing mixtures in the United States of America.

US Lawmakers Urged EPA to Investigate Talc Products

Oregon’s Senator Jeff Merkley and Congresswoman Suzanne Bonamici today pressed the Environmental Protection Agency (EPA) for answers following an alarming new Reuters report revealing that some everyday consumer products, including baby powders, may contain asbestos—a highly toxic chemical.

Virginia Holds Employer Liable for Household Contact Asbestos Exposure

An employer owes a duty of care to an employee’s family member who alleges exposure to asbestos from the work clothes of an employee, where the family member alleges the employer’s negligence allowed asbestos fibers to be regularly transported away from the place of employment to the employee’s home.

A Complete Ban of Asbestos Urged

The following comment was submitted by Linda Reinstein, President/CEO, Asbestos Disease Awareness Organization (ADAO) in response to the US EPA Proposed Rule to permit further use of asbestos in the US. EPA is developing a significant new use rule (SNUR) under section 5(a)(2) of the Toxic Substances Control Act (TSCA) for certain uses of asbestos that are no longer in use in the United States. Persons subject to the SNUR would be required to notify the EPA at least 90 days before commencing such manufacture or processing. The required notifications would initiate EPA's evaluation of the intended use within the applicable review period. Manufacture and processing for the significant new use would be unable to commence until EPA has conducted a review of the notice, made an appropriate determination on the notice, and taken such actions as are required in association with that determination.

US EPA Still Not Banning Asbestos

The US EPA is about to approve 15 uses for asbestos, a known carcinogen. This action is consistent with the Trump Administration's effort ease regulations. This action is contrary to the efforts of the Obama Administration to entirely ban the use of asbestos in the US.

Congressman Pallone Asks FDA to Investigate Cosmetic Products Containing Asbestos

Standing outside a Claire’s Store in Sea Girt, Congressman Frank Pallone, Jr. (NJ-06) called on the Food and Drug Administration (FDA) to investigate Claire’s Stores, Inc., and Justice Retail following reports that tremolite asbestos, a known human carcinogen, was found in cosmetic products marketed to girls and young women.

US Senators Introduce Bill to Ban Asbestos and Protect Public Health

Oregon’s Senator Jeff Merkley, along with Senators Cory Booker (D-NJ), Dianne Feinstein (D-CA), Dick Durbin (D-IL), Bernie Sanders (I-VT), Jon Tester (D-MT), Sheldon Whitehouse (D-RI), and Edward J. Markey (D-MA) today introduced the Alan Reinstein Ban Asbestos Now Act of 2017, legislation to eliminate human or environmental exposure to asbestos, a known carcinogen.

An Increase Predicted of Reported Mesothelioma Cases

Asbestos is a naturally occurring fibrous mineral which was widely used in the manufacture of a variety of products beginning in the late nineteenth century. Although the majority of exposure to asbestos occurred between 1940 and 1980, in occupations such as construction, shipyards, railroads, insulation, sheet metal, automobile repair, and other related fields, exposure continues to this day.

National Asbestos Awareness Week April 1-7, 2017

S. RES. 98 Designating the first week of April 2017 as “National Asbestos Awareness Week”.

IN THE SENATE OF THE UNITED STATES
March 27, 2017
03/29/2017 Resolution agreed to in Senate without amendment and with a preamble by Unanimous Consent.  (All Actions)

Senator Jon Tester

Mr. Tester (for himself, Mr. Markey, Mr. Isakson, Mr. Daines, Mr. Durbin, Mrs. Feinstein, Ms. Warren, Mr. Merkley, and Mr. Leahy) submitted the following resolution;

Trump Administration May Bring a Surge in Occupational Disease Claims

Mesothelioma death rates remain high in the US even on the eve of an anticipated national ban of the asbestos fiber. Things may radically change for the worse as the Trump Administration goes forward with its announced intention to dismantle environmental regulation now in place and placed on-track for enactment during the former Obama Administration. With anticipated less EPA and OSHA regulation under the Trump administration, there is the potential for a serious surge of future occupational disease claims in the United States.

Lung-sparing surgery for patients with advanced mesothelioma results in prolonged survival, new study shows

Patients with advanced malignant pleural mesothelioma (MPM) treated with a combination of surgery to remove the cancer but save their lung, plus photodynamic therapy and chemotherapy, had a median survival of nearly three years, with a subset of patients living longer than seven years, according to new research published in the Annals of Thoracic Surgery.

Asbestos and Mold in Schools: Paterson NJ Safety Officer Claims Mishandling

The presence of asbestos and mold in schools and the potential exposure of students and employees has been a major health concern for decades. A Paterson NJ health and safety office now claims that the Paterson NJ school system improperly mishandled the removal of these hazards in violation of Federal regulations.

US Department of Labor Urges Major Changes in the Nation's Workers' Compensation System

As The Path to Federalization of the US workers' compensation system broadens, the US Department of Labor has published a report urging expansion of the Federal role in reforming the entire patchwork of state systems. As the Presidential Election Cycle moves ahead, the ultimate outcome will impact the the nation's struggling workers' compensation scheme. Based on historical statements both "Hillarycare" or "Trump Medical," (lead by his advisor, Former Speaker Newt Gingrich,  will focus on this issue. See  my prior blog posts below.

Senator Boxer Calls for Expedited TSCA Asbestos Evaluation

Senator Barbara Boxer (D-CA), Ranking Member of the Environment and Public Works Committee, sent a letter today to Gina McCarthy, the Administrator of the Environmental Protection Agency (EPA), urging the Agency to move quickly to act on all forms of asbestos under the new Toxic Substances Control Act (TSCA).  EPA is required to select 10 chemicals that will be evaluated and then regulated if they are shown to present unreasonable risks. The full text of the letter is below.

August 26, 2016

Dear Administrator McCarthy:

I am sure you share my strong interest in maximizing the success of the new Toxic Substances Control Act (TSCA) and are working to identify positive early actions that demonstrate the Agency’s commitment to bold and effective implementation.

The first important decision EPA must make under the law is to select the initial 10 chemicals that will be evaluated and then regulated if they are shown to present unreasonable risks.  This decision must be made by mid-December of this year.  The chemicals selected will drive EPA’s agenda for the next several years. To build confidence in the agency’s ability to deliver meaningful results for our children and families, EPA must consider all forms of asbestos in this initial list of chemicals it acts on.

In 1989, EPA issued a comprehensive rule under TSCA banning and phasing out the major uses of asbestos.  Despite the extensive record compiled by the agency, the Fifth Circuit Court of Appeals overturned the rule.  The court’s decision paralyzed EPA’s existing chemicals program for the next two decades.  Asbestos became a poster child for the inadequacy of the law and a major impetus for TSCA reform.  As President Obama said when he signed the TSCA reform bill into law, “the system was so complex, it was so burdensome that our country hasn’t even been able to uphold a ban on asbestos….”

During the development of TSCA reform legislation, numerous members of Congress cited asbestos as an example of why the law must be revamped and emphasized that the new TSCA legislation would remove the roadblocks that stymied EPA’s first attempt to regulate asbestos.  Congress was also clear in the recently-passed legislation that regulating asbestos should be one of EPA’s top priorities -- the bill directs EPA to give priority to chemicals like asbestos that are known human carcinogens and have high acute and chronic toxicity.

Now that the impediments in the original TSCA law are gone, completing the job started by EPA in 1989 would send a strong signal that the new law can be effective in addressing the most dangerous chemicals in commerce.

The evidence regarding the dangers of asbestos is overwhelming. As EPA found in its 1989 rulemaking, “[it] is well-recognized that asbestos is a human carcinogen and is one of the most hazardous substances to which humans are exposed in both occupational and non-occupational settings.”  OSHA has similarly said it is “aware of no instance in which exposure to a toxic substance has more clearly demonstrated detrimental health effects on humans than has asbestos exposure.” OSHA has also emphasized that “[t]here is no "safe" level of asbestos exposure for any type of asbestos fiber [and] [a]sbestos exposures as short in duration as a few days have caused mesothelioma in humans.”

Asbestos continues to exact a high toll in disease and death on Americans.  According to the Asbestos Disease Awareness Organization (ADAO), the estimated annual number of asbestos-related disease deaths is nearly 15,000 in the U.S., including nearly 11,000 deaths from lung cancer.

Though asbestos production has ceased in the U.S. and its use has generally declined, significant imports for a range of applications persist and exposures continue to occur with alarming regularity.  According to a detailed study by the Environmental Working Group, from 2006 to 2014, 23 ports on the Gulf of Mexico, West Coast and Eastern Seaboard received more than 8.2 million pounds of raw asbestos, as well as hundreds of shipments of hazardous asbestos waste and products made with asbestos.

Similarly, in its annual report on U.S. mineral importation and use, the United States Geological Service states that in 2015:

“Asbestos consumption in the United States was estimated to be 400 tons, based on asbestos imports through July 2014.  The chloralkali industry accounted for an estimated 88% of U.S. consumption.  The remainder was used in coatings and compounds, plastics, roofing products, and unknown applications.”

The World Health Organization (2006) has called for an end to the use of all types of asbestos as the most effective way to eliminate asbestos-related diseases.  From the European Union to the Persian Gulf, from industrial states like Japan to Africa’s developing economies, 56 nations have followed this recommendation and banned asbestos (with limited exceptions), according to the International Ban Asbestos Secretariat.

The combination of well-documented, widespread and serious health effects and ongoing use and exposure provides a strong basis for EPA to act quickly on asbestos.  With the new tools provided by the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the U.S. now has the ability to be a global leader and join the many other nations that have acted to address the harms posed by asbestos.  EPA should seize this opportunity by including asbestos in the first 10 chemicals that it acts on under the new law.

I look forward to learning more about your plans for asbestos.

Sincerely,

Barbara Boxer
Ranking Member

….

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  has been representing injured workers and their families who have suffered occupational accidents and illnesses.

Related Articles:

ADAO Testified at House Subcommittee Hearing – “TSCA has Failed” Nov 7, 2013 ... The Asbestos Disease Awareness Organization (ADAO) was honored to testify on Wednesday, September 18, 2013 at 2:00 PM EDT before the ... workers-compensation.blogspot.com

Workers' Compensation: What you don't know could hurt you ... Sep 11, 2014 ... It may come as a surprise to those not familiar with the Toxic Substances Control Act (TSCA) – the primary law that regulates chemicals used in ... workers-compensation.blogspot.com

Workers' Compensation: Time to Lab Test Chemicals Jan 29, 2010 ... The Toxic Substances Control Act (TSCA) was enacted in 1974 and has not kept up with the time. Of the 80,000 chemical substances in use it ... workers-compensation.blogspot.com

Workers' Compensation: Asbestos victims speak out Oct 14, 2013 ... TSCA was passed more than 30years ago and is grossly out of date. ADAO has been a stakeholder in discussions with Congressional ... workers-compensation.blogspot.com

Wisconsin shipyard faces nearly $1.4M in OSHA penalties for exposing workers to lead, and other hazards

OSHA finds workers exposed to lead at levels up to 20 times the permissible exposure limit

SUPERIOR, Wis. - Federal health inspectors found Fraser Shipyards Inc. overexposed workers to lead during the retrofitting of a ship's engine room. The U.S. Department of Labor's Occupational Safety and Health Administration's sampling results determined 14 workers had lead levels up to 20 times the exposure limit. The agency also found workers exposed to other heavy metals.

Toxic-Tort: NJ Supreme Court Holds That an Employer Has a Duty to a Household Contact

"We hold that the Olivo duty of care may, in proper circumstances, extend beyond a spouse of a worker exposed to the toxin that is the basis for a take-home toxic-tort theory of liability." Justice LaVecchia, NJ Supreme Court

An employer's duty to a employee's household contact was the focus of decision announced by the NJ Supreme Court. The NJ Supreme Court reviewed the question, that was certified by the US Third Circuit Court of Appeals, to define the duty and its scope. The household contact, the finance, subsequently spouse, suffered beryllium related disease causally related to the employee's toxic exposure.

The case arose out of a household contact's exposure to beryllium brought home on the employee's cloths. At the time of the exposure, 30 years ago, the household contact was the fiance of the employee.

"The United States Court of Appeals for the Third Circuit having certified to the Supreme Court the following question of law pursuant to Rule 2:12-1:And the Court having determined to accept the question as certified."Does the premises liability rule set forth in Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 895 A.2d 1143 (2006), extend beyond providing a duty of care to the spouse of a person exposed to toxic substances on the landowner's premises, and, if so, what are the limits of that liability rule and the associated scope of duty?

SYLLABUS 

(This syllabus is not part of the opinion of the Court.  It has been prepared by the Office of the Clerk for the convenience of the reader.  It has been neither reviewed nor approved by the Supreme Court.  Please note that, in the interest of brevity, portions of any opinion may not have been summarized.) 

Brenda Ann Schwartz v. Accuratus Corporation (A-73-14) (076195) 

Argued April 25, 2016 -- Decided July 6, 2016 

LaVECCHIA, J., writing for a unanimous Court. 

In this appeal, the Court considers the following question of law certified by the United States Court of Appeals for the Third Circuit:  Does the premises liability rule set forth in Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006) extend beyond providing a duty of care to the spouse of a person exposed to toxic substances on the landowner’s premises, and, if so, what are the limits on that liability rule and the associated scope of duty? 

The action before the Third Circuit involves plaintiffs Brenda Ann and Paul Schwartz.  After Brenda was diagnosed with chronic beryllium disease, the Schwartzes filed a complaint raising claims of negligence, products liability, and strict liability against defendant Accuratus Ceramic Corporation (Accuratus), a ceramics facility where Paul had worked in 1978 and 1979.  In 1979, Paul began sharing an apartment with an Accuratus co-worker, Gregory Altemose.  At the time, Paul and Brenda were dating and Brenda frequently visited and stayed overnight at the apartment.  After the couple married in June 1980, Brenda and Paul resided in the apartment, where Altemose also continued to live.  Brenda performed laundry and other chores at the apartment, both when she stayed with Paul prior to their marriage and after she moved in as Paul’s wife.   

The complaint alleges that employees at Accuratus’s facility were exposed to beryllium, which, according to plaintiffs, may result in cancer and other diseases of the lungs and skin.  Plaintiffs allege that Brenda was subjected to take-home beryllium exposure due to Paul and Altemose bringing the substance home from Accuratus on their work clothing.  Thus, plaintiffs’ take-home-toxin theory of liability is based in part on Brenda’s exposure to beryllium for the period that she frequently stayed over at the apartment prior to her marriage to Paul.  Additionally, the take-home-toxin theory encompasses the time period after the marriage, premised on the theory that Altemose continued to bring the substance home to the shared apartment from his work at the Accuratus facility. 

Originally filed in Pennsylvania state court, plaintiffs’ case was removed to the United States District Court for the Eastern District of Pennsylvania.  Plaintiffs’ motion to remand was denied.  The federal district court concluded that “neither [New Jersey nor Pennsylvania] has recognized a duty of an employer to protect a worker’s non-spouse . . . roommate from take-home exposure to a toxic substance.”  The court pointed to Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006) as support for that proposition.  The court denied plaintiffs’ motion for reconsideration, commenting that to interpret Olivo as supporting a duty to Brenda would “stretch the New Jersey Supreme Court’s decision . . . beyond its tensile strength.”  After the Schwartzes filed an amended complaint, Accuratus filed a motion to dismiss, which was granted.  The federal district court concluded as a matter of law that Accuratus did not owe a duty of care to Brenda. 

Following additional motion practice, the Schwartzes filed a notice of appeal with the Third Circuit.  The Third Circuit filed a Petition for Certification of a Question of State Law, pursuant to Rule 2:12A-1, which the Court accepted.  222 N.J. 304 (2015). 

HELD:  The duty of care recognized in Olivo v. Owens-Illinois, Inc., 186 N.J. 394 (2006) may, in proper circumstances, extend beyond a spouse of a worker exposed to a workplace toxin that is the basis for a take-home toxic-tort theory of liability.  

1. The threshold question certified by the Third Circuit -- whether the premises liability rule set forth in Olivo may extend beyond providing a duty of care to the spouse of a person exposed to toxic substances on the landowner’s premises -- necessitates a review of Olivo and the reasoning that led to its holding.  In Olivo, the Court considered whether a landowner could be liable for injuries allegedly caused from asbestos exposure experienced by the wife of a worker who had performed welding and steam fitting tasks that brought him into contact with asbestos on the landowner’s premises.  There, the Court explained “whether a duty of care can be owed to one who is injured from a dangerous condition on the premises, to which the victim is exposed off-premises, devolves to a question of foreseeability of the risk of harm to that individual or identifiable class of individuals.”  Id. at 403.  Once foreseeability is established, a court must evaluate whether recognition of a duty accords with fairness, justness, and predictability, applying the following factors derived, in part, from Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993):  (1) the relationship of the parties, namely the relationship between plaintiff and defendant; (2) the nature of the attendant risk, including the danger of the toxin at issue and how easily the toxin is transmitted and causes injury (the greater the danger, the greater the duty); (3) the opportunity and ability to exercise care; and (4) the public interest in the proposed solution.  (pp. 7-9)   

2. Based on the facts presented in Olivo’s summary judgment record, the Court determined that the landowner should have foreseen that sending unprotected, soiled work clothes home on the backs of workers would result in their clothes being laundered.  That placed the person, who could be expected to perform the task of handling and laundering the unprotected work clothing, in regular and close contact with material that had become infiltrated with asbestos in the worksite.  As a result, the Court held that a duty of care to protect on-site workers from exposure to friable asbestos in the worksite extended to spouses “handling the workers’ unprotected work clothing based on the foreseeable risk of exposure from asbestos borne home on [the workers’] contaminated clothing.”  Olivo, supra, 186 N.J. at 404-05 (emphasis added).  Applying the Hopkins factors, the Court concluded that fairness and justness would be served by extending off-premises liability in that setting.  (pp. 9-11)

3. In so holding, the Court determined that the landowner’s concerns about essentially limitless liability were unfounded because the duty recognized under the circumstances of Olivo was “focused on the particularized foreseeability of harm to plaintiff’s wife.”  Id. at 405.  That concise statement cannot be taken out of its context -- a duty was found to exist based on the foreseeability of regular and close contact with the contaminated material over an extended period of time.  Id. at 404-05.  The duty of care for take-home toxic-tort liability discussed in Olivo was not defined by the role of lawfully wedded spouse to someone who worked on the landowner’s premises.  Rather, it was foreseeable that Eleanor (plaintiff’s wife) would be handling and laundering the plaintiff’s soiled, asbestos-exposed clothes, which the landowner failed to protect at work and allowed to be taken home by workers.  That easily foreseeable, regular, and close contact with the dangerous condition produced the conclusion that the landowner could be held liable to Eleanor for her injuries.  (pp. 11-13)

4. Tort law is built on case-by-case development based on the facts presented by individual cases.  The evolution of case law must reflect the simultaneous evolution of societal values and public policy.  Olivo does not suggest that the duty recognized must remain static for all future cases -- no matter the pleadings and proofs, including unknown aspects of other toxins -- and that take-home toxic-tort liability must remain limited to a spouse handling take-home toxins.  Olivo does not state, explicitly or implicitly, that a duty of care for take-home toxic-tort liability cannot extend beyond a spouse.  Nor does it base liability on some definition of “household” member, or even on the basis of biological or familial relationships.  Olivo must be recognized as a step in the development of the common law, which of necessity is built case by case on individual factual circumstances.  (pp. 13-16)

5. The Court cannot define the contours of the duty owed to others in a take-home toxic-tort action through a certified question of law.  While there may be situations in which household members are in contact with toxins brought home on clothing, a refined analysis for particularized risk, foreseeability, and fairness requires a case-by-case assessment in toxic-tort settings.  Although the Court cannot predict the direction in which the common law will evolve, the Court identifies certain factors that will be important as such cases present themselves.  In sum, the duty of care recognized in Olivo may extend, in appropriate circumstances, to a plaintiff who is not a spouse.  The assessment should take into account a weighing of the factors identified herein to determine whether the foreseeability, fairness, and predictability concerns of Hopkins should lead to the conclusion that a duty of care should be recognized under common law.  (pp. 16-19)

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, FERNANDEZ-VINA, and SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. 

Related articles:

Mesothelioma Award for Household Contact of Talc Worker Upheld Mar 28, 2015 ... A $1.6 Million award for a household contact of an asbestos worker was affirmed by a NJ Court of Appeals. The child of a Shulton employee ... workers-compensation.blogspot.com

Workers' Compensation: $208.8 Million Awarded in California ... May 1, 2010 ... The case involved a household contact exposure to asbestos fiber. The wife of the asbestos worker was exposed to asbestos fiber on the ... workers-compensation.blogspot.com

Workers' Compensation: Scientific Evidence to Support 'Seven ... Nov 29, 2013 ... One would think that we woud have learned of the serious medical problems caused by the consequences of being a household contact to an ... workers-compensation.blogspot.com

Workers' Compensation: Childrens Asthma Caused By Pregnant ... Oct 11, 2011 ... Labels: asbestos; brakes; chrysotile; mechanic; occupation; epidemiology; mesothelioma, Asthma, Bystander Exposure, household contact, ... workers-compensation.blogspot.com

Kidney Cancer Reported Related to Workers' Asbestos Exposure

A new research report links asbestos exposure to kidney cancer. Today's post is shared from pubmed.com.

Asbestos is the main causal factor for malignant mesothelioma (MM), a relatively rare and aggressive malignancy. Some epidemiological evidence suggests a role of this agent also in the etiology of renal cell carcinoma (RCC), the most common form of kidney cancer.

Mesothelioma surgery improves quality of life, study finds

Loyola University Health System reports:

Many mesothelioma patients avoid surgery for fear it will degrade their quality of life. But a study has found just the opposite: Patients who underwent an operation called pleurectomy and decortication (PD) generally reported their quality of life improved after surgery.

Click here to read the complete article.

Related articles

• New staging of mesothelioma tumors may predict outcome (workers-compensation.blogspot.com)
• Selecting the right surgeon is a big deal (workers-compensation.blogspot.com)

Mesothelioma: Employer Held Liable for Wife's Asbestos Related Death

The Tennessee Valley Authority (TVA) was held liable for the death of an asbestos worker's wife death from mesothelioma. A Federal Court in Alabama held that the the employer held that the employer had a duty to protect the wife a nuclear plant employee from take home asbestos exposure.