This article concerns asbestos -related legal and regulatory issues.
Background
In the late 1800s and early 1900s, asbestos was considered an ideal material for use in the construction industry. It was known to be an excellent fire retardant, to have high electrical resistivity, and was inexpensive and easy to use.
The problem with asbestos arises when the fibers become airborne and are inhaled. Because of the size of the fibers, the lungs cannot expel them. They are also sharp and penetrate tissues.
Health problems attributed to asbestos include
- Asbestosis - A lung disease first found in textile workers, asbestosis is a scarring of the lung tissue from an acid produced by the body's attempt to dissolve the fibers. The scarring may eventually become so severe that the lungs can no longer function. The latency period (meaning the time it takes for the disease to develop) is often 10–20 years.
- Mesothelioma - A cancer of the mesothelial lining of the lungs and the chest cavity, the peritoneum (abdominal cavity) or the pericardium (a sac surrounding the heart). Unlike lung cancer, mesothelioma has no association with smoking. The only established causal factor is exposure to asbestos or similar fibers. The latency period for mesothelioma may be 20–50 years. The prognosis for mesothelioma is grim, with most patients dying within 12 months of diagnosis.
- Cancer - Cancer of the lung, gastrointestinal tract, kidney and larynx have been linked to asbestos. The latency period for cancer is often 15–30 years.
- Diffuse pleural thickening
Considerable international controversy exists regarding the perceived rights and wrongs associated with litigation on compensation claims related to asbestos exposure and alleged subsequent medical consequences. Some measure of the vast range of views expressed in legal and political circles can perhaps be exemplified by the two quotes below, the first from Prof. Lester Brickman, an American legal ethicist writing in the Pepperdine Law Review, and second, Michael Wills, a British Member of Parliament, speaking in the House of Commons on July 13. 2006:
"A review of the scholarly literature indicates a substantial degree of indifference to the causes of this civil justice system failure. Many of the published articles on asbestos litigation focus on transactional costs and ways in which the flow of money from defendants to plaintiffs and their lawyers can be expeditiously and efficiently prioritized and routed. The failure to acknowledge, let along analyze, the overriding reality of specious claiming and meritless claims demonstrates a disconnect between the scholarship and the reality of the litigation that is nearly as wide as the disconnect between rates of disease claiming and actual disease manifestation".
"Many of those who I see in my surgeries have worked in a number of workplaces and they could have been exposed to asbestos in each of them, but medical science is such that no one can identify which of them it is. As a result, there has been a long and complex history of legal discussion on how to apportion liability. The lawyers and the judiciary have wrestled, rightly and valiantly, with complex and difficult law, but it has created despair for the families whom we represent. Many of my constituents’ families have been riven by the consequences of litigation in trying to get some compensation for a disease that has been contracted through no fault of theirs. That is cruel and unacceptable."
Regulation and government action
Worldwide, 60 countries (including those in the European Union) have banned the use of asbestos, in whole or in part.. Some examples follow.
Australia
A nationwide ban on importing and using all forms of asbestos took effect on 31 December 2003. Reflecting the ban, the National Occupational Health and Safety Commission (NOHSC) revised asbestos-related material to promote a consistent approach to controlling exposure to workplace asbestos and to introduce best-practice health and safety measures for asbestos management, control and removal. The ban does not cover asbestos materials or products already in use at the time the ban was implemented.
Although Australia has only a third of the UK's population, its asbestos disease fatalities approximate Britain's of more than 3,000 people per year.
Brazil
The São Paulo State law 12.684/07 prohibits the use of any product which utilizes asbestos, this legislation having been formally upheld by the Brazilian Supremo Tribunal Federal .
Canada
The only asbestos mines still operating in Canada are in the Province of Quebec. They are owned by the Quebec government who expropriated the Asbestos Corporation Limited in 1981 from its American parent, General Dynamics. Quebec is the second largest producer in the world behind Russia and the world's largest exporter of asbestos. Quebec exports 95 percent of its chrysotile production, mostly to Asian and other poor countries. In 1999 the government of Canada went before the World Trade Organization to challenge, unsuccessfully, the ban on asbestos in France.
France
France banned the use of asbestos in 1997, and the WTO upheld France's right to the ban in 2000. In addition, France has called for a worldwide ban. .
New Zealand
In 1984 The import of raw amphibole (blue and brown) asbestos into New Zealand was banned. In 2002 the import of chrysotile (white) asbestos was banned.
United Kingdom
The British Government's Health and Safety Executive (HSE) has promoted rigorous controls on asbestos handling, based on reports linking exposure to asbestos dust or fibres with thousands of annual deaths from mesothelioma and asbestos-related lung cancer.
- "At least 3500 people in Great Britain die each year from mesothelioma and asbestos related lung cancer as a result of past exposure to asbestos. Annual numbers of deaths are predicted to go on rising into the next decade."
- The TUC (UK) report cites a figure of 5000 deaths per year. TUC (UK)
The HSE does not assume that any minimum threshold exists for exposure to asbestos below which a person is at zero risk of developing mesothelioma, since they consider that it cannot currently be quantified for practical purposes; they cite evidence from epidemiological studies of asbestos exposed groups to argue that even if any such threshold for mesothelioma does exist, it must be at a very low level. . (There is currently no scientific consensus as to whether there does indeed exist such a specific threshold ).
Previously it was possible to claim compensation for pleural plaques caused by negligent exposure to asbestos, on the grounds that although it is intself asymptomatic, it is linked to development of diffuse pleural thickening, which causes lung impairment. It has been highly contentuous, however, as to the probability of pleural placques developing into pleural thickening or other asbestos related illnesses. On October 17, 2007 this point was clarified by the Law Lords′ ruling that workers who have pleural placques as a result of asbestos exposure will no longer be able to seek compensation as it does not in itself constitute a disease.
The Control of Asbestos Regulations were introduced in the UK in November 2006 and are an amalgamation of three previous sets of legislation (Asbestos Prohibition, Asbestos Licensing and the Control of Asbestos at Work Regulations) aimed at minimising the use and disturbance of asbestos containing materials within British workplaces. Essentially this legislation bans the import and use of most asbestos products and sets out guidelines on how best to manage those currently in-situ.
Dutyholders of all non-domestic properties within the UK must establish an asbestos register and a management plan. The exception is where the property age (post-1999 when Chrysotile asbestos was banned) would indicate that such products will not have been used during the construction of the building.
The removal of high-risk asbestos products from non-domestic properties is tightly controlled by the HSE and high-risk products such as thermal insulation must be removed under controlled conditions by licensed contractors. Further guidance on which products this applies to can be found on the HSE website along with a list of licensees.
United States
The American Bar Association states that a growing number of claimants do not, and may never, suffer from asbestos illness. Because of the fear of a running statute of limitations, many people file claims who are not presently ill, but have had X-rays that show changes 'consistent with' asbestos disease.
According to the Environmental Working Group Action Fund, 10,000 people a year die from asbestos-caused diseases the United States, including one out of every 125 American men who die over the age of 50. The Environmental Protection Agency (EPA) has no general ban on the use of asbestos. However, asbestos was one of the first hazardous air pollutants regulated under Section 112 of the Clean Air Act of 1970, and many applications have been forbidden by the Toxic Substances Control Act (TSCA).
According to a September 2004 of the American Journal of Respiratory and Critical Care Medicine, asbestos is still a hazard for 1.3 million US workers in the construction industry and for workers involved in the maintenance of buildings and equip
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