EPA Bans Asbestos – What This Means for Mesothelioma Cases
Paul Kelley talks about the recent ban on asbestos in the United States by the EPA, what this means for public health, awareness and education, as well as how this effects ongoing and future legal claims regarding asbestos exposure and mesothelioma.
John Maher: Hi, I’m John Maher and I’m here today with Paul Kelley. Paul is a partner with the Kentucky personal injury law firm, Satterley & Kelley, which has over 45 years of collective experience in litigating mesothelioma and asbestos claims. Today we’re talking about the EPA banning asbestos and what this means for mesothelioma cases. Welcome, Paul.
Paul Kelley: Hey, John. How are you doing today?
John: I’m doing well, thanks. How are you?
Paul: Doing good, thanks.
EPA Ban on Asbestos and What It Means for Public Health
John: We just heard, Paul, that the EPA has announced a complete ban on asbestos. That news might come as a surprise to some people who might think that asbestos, of course, has already been banned, but as we’ve talked about before on previous episodes of this podcast, that’s not the case. Talk about that a little bit and then, as a mesothelioma attorney, how significant is this new news for public health moving forward?
Paul: Oh, gosh, John, it’s a wonderful thing. It’s been a long process in the making to get to this point. They actually started working on the ban of all forms of asbestos way back in the ’70s, and in the late ’80s – early ’90s there was a push to ban chrysotile asbestos and it didn’t get pushed through. There’s a lot of different reasons why it didn’t get pushed through at that time, but the biggest reason is that industry fought it heavily. And, however it happened — it predated my time as a lawyer and whatnot –but they were successful in beating this back. Every so often — I’ve been handling mesothelioma cases, asbestos cases, for about 21, 22 years now — we would hear about it periodically that there’s a push to ban chrysotile asbestos.
To refresh everybody’s memory, asbestos is a naturally-occurring product. There are six different fiber types. Of those six different fiber types, three historically have been used for commercial purposes. What I mean by that is that there are three different types that have been purposely used as an ingredient in various products. There are 3000 products historically that asbestos has been found in: thermal insulation, friction products, which would be breaks and clutches, tile. More recently, folks have heard about things being in talcum powders and things like that.
Amosite and crocidolite were effectively banned in the ’70s, and there was some science that indicated that those fiber types were more carcinogenic than chrysotile. Nobody has ever said that chrysotile is not carcinogenic. Chrysotile comprised or was the ingredient in 95% of the asbestos products that have historically been used commercially in the United States since asbestos started being used in the 1930s and 1940s. It was very, very prevalent. No one has ever indicated that chrysotile is harmless. The EPA has never said that chrysotile is harmless. In fact, the EPA, OSHA, NIOSH, World Health Organization, numerous United States and international agencies, have routinely concluded in the ’70s, ’80s, ’90s, all the way up to today, that any exposure to asbestos, any fiber type, including chrysotile, is capable of causing mesothelioma, capable of causing lung cancer and other forms of cancer.
It’s not like there was suddenly an epiphany that occurred in the last few years that led to this. What occurred is industry fought for a long time to not ban this product. There were two reasons for it, I think. I’ll preface this and tell you this is my educated opinion based on my experience as a lawyer.
John: Sure.
Paul: Reason number one is they still wanted to sell it. It was sold … Canada has historically been a big supplier of chrysotile asbestos. There actually used to be a town in Canada called Asbestos. I think it’s in Quebec. A lot of companies would still use asbestos in their products and it would be chrysotile because that’s what you could get in the United States. They wanted to use it and they wanted to use it probably because it’s cheaper, easier, and it’s just that simple. Lord knows, even outside the asbestos context, you can find scores and scores of corporations that have sacrificed health and safety for cost and convenience. That’s partially what’s happened.
The other issue I think, which probably requires a higher level of cynicism, but I think it’s certainly true, is that asbestos litigation has been rampant for over 40 years now. What I have experienced as a lawyer is vastly different today than what it was when I first started doing it in the early 2000s. It used to be that defendants would concede that their product or the asbestos in their product certainly was capable of causing mesothelioma.
But they just said, “The person didn’t get enough exposure to our product to cause it. It was somebody else’s product. Have a nice day, move on.” As the years have progressed, they have worked with scientists that are friends of the industry to publish medical and scientific literature that essentially concludes that chrysotile asbestos is either completely harmless, it just wouldn’t cause cancer, or the exposure would take so much exposure that nobody could realistically get enough exposure to chrysotile to cause disease.
At least some of these defendants always point out, “Well, look, asbestos isn’t even banned in the United States.” We would get motions, we still get motions in virtually every case, that I should be precluded from identifying all the European countries and all the countries throughout the world that have banned even chrysotile asbestos in their countries as proof that chrysotile’s dangerous. Lots of courts still go with us on those issues. Some courts might go with them.
From a public health standpoint, the biggest problem with asbestos is the lengthy latency period. Somebody can have exposure today and they won’t develop cancer in 10 years. They probably won’t even develop cancer in 20 years. It’ll be 30, 40, 50 years down the road before they develop that cancer. One of the reasons why laws like OSHA, the Occupational Safety and Health Act, and the Environmental Protection Act and these [other] agencies exist is to protect people from industry, but also to protect people from themselves. People don’t fully understand and appreciate the risks. They don’t do what I do for a living. They’re not doctors. They’re not scientists.
I get calls all the time from folks who are 25-years-old that say, “Guys, I was working at a place and they shut the job site down after two weeks because they said there was asbestos here.” They’re worried and they should be worried, but that worry is not something that’s going to immediately cause them harm. It’s something that they have to be concerned about for really the rest of their lives.
Removing that risk is never a bad thing. We’re never going to eliminate every possible source of chrysotile exposure in this country because, unfortunately, it still exists in factories and powerhouses, all kinds of industrial plants in the United States today where it’s been wrapped up. Supposedly it’s safe and people won’t be harmed. But we certainly have this great ability to stop people from being exposed to prospective new products today, even if it’s only a handful of products in the United States today, and it probably is just a handful of products, but so what? Let’s say that 10,000 people might be exposed to a brand new asbestos product in the United States today and now hopefully that’ll be nil in a couple of years. Well, that’s a lot of people moving forward that just won’t have that risk anymore. Hopefully 30, 40 years down the road after I’m long gone, hopefully there won’t be a need for people like me to go after companies that knowingly expose people to an asbestos product. It’s certainly a great thing to remove and eliminate another risk.
We still have other risk in industry, old products and things like that, and we need to deal with those too. In large part, I think a lot of companies today certainly do try to avoid those risks and do the things they need to do, but not allowing people to be exposed to a brand new product that was intended to have asbestos, it’s going to save lives in the future. There’s absolutely no question about that. It’s just too bad that it didn’t happen 30 years ago because we could have saved even more lives over the last 30 years and even moving forward than what this is going to do. But I’ll never be critical of finally doing the right thing. It’s certainly a great day for workers all throughout this country, and they have so many other things they have to be concerned about, so many other ways they can be injured, so many ways that they don’t come home to their families, and eliminating this future risk is a wonderful thing and we couldn’t be happier.
Effects of the Asbestos Ban on Existing Products
John: Right, absolutely. This does, like you said, eliminate that future risk of any new products being introduced that might have asbestos in them, but many people have been exposed to asbestos already in the past. Obviously the ban now doesn’t change the fact that somebody who’s already been exposed to asbestos has already been exposed. You can’t go back in time and fix that. Does it have any sort of retroactive effect on products maybe that are out there right now? Does this ban mean that products that have asbestos in them that are existing out there now have to be removed or anything like that? What’s the situation?
Paul: Unfortunately, this is a bit of a process. I believe that the ban is going to give a period of two or three years before it goes completely into effect. Again, lots of times that’s not because the EPA’s saying, “We think these products are safe,” of course they don’t. But from a regulatory standpoint, there’s only so much that entities like the EPA and OSHA can do. They have to give industry enough time to remove [asbestos] and come up with alternative products and get them out of the marketplace.
Unfortunately, I would tell people, particularly those who are mechanics that might come into contact with brakes, or they do home remodeling and use things like joint compounds and do plaster and drywall work, maybe people that still use gaskets for any reason, I would still counsel those people pay especial attention to what it is that you’re using because the products just didn’t come off the shelves immediately and they’re not going to come off the shelves immediately. It’s still going to take some time. I wish that things worked that quickly.
It’s very similar to what happened when the OSHA regulations were enacted back in the ’70s. There were what’s called permissible exposure levels that were allowable in industrial settings or any place where asbestos was used. Those permissible exposure levels were quite high, and they were never going to stop people from getting cancer. Today, the permissible exposure levels are down to essentially the lowest amount that you could ever reasonably expect in any sort of industrial setting where asbestos is. Those exposure levels still aren’t considered safe. Those exposure levels still result in cancer, but it’s the best that our government can do.
The reason why we have lawsuits and the right to recover in our court system is because the government can only do so much to protect people. You want industry to say, “Okay, well, this is banned. I am going to do a recall. I am going to take this off my shelf now. I’m not going to wait two years for this to come into effect,” but frequently they don’t do that. Some will, some won’t. Government does its part, the best it can do, to protect people, and then we come in to take care of those actors that still didn’t quite get the message.
The bottom line is that, yes, there’s going to be a period of time that people are still going to potentially come into contact with a product manufactured in 2024 or 2025 that contains asbestos. Just like you do with your food, just like you do with drugs and other things, look at those labels. Make sure you understand what’s in them, and even if it seems harmless, and even if it seems like, “I’m not going to use this product more than today, ever,” there’s been documented reports in the medical and scientific literature of people being exposed to asbestos for one day and getting cancer. Yeah, I wish we lived in a perfect world, but of course, if we lived in the perfect world, these products would’ve been banned even before the ’90s. They would’ve been banned in the ’50s, ’60s, ’70s, and then we’d have a whole population of people still alive today.
The EPA Asbestos Ban’s Effect on Ongoing Mesothelioma Lawsuits
John: Sure. Could this EPA asbestos ban affect ongoing mesothelioma lawsuits or future legal claims in any way? I know you mentioned that defense attorneys might say something like, “Well, asbestos isn’t even banned in the United States,” as part of their defense. Obviously it would change that a little bit and it would allow you to say, “Well, no, in fact, asbestos has now been banned fully in the United States.” Are there other ways in which it could affect current or ongoing mesothelioma lawsuits?
Paul: No, I think the main way that I think it will impact future lawsuits or current lawsuits is exactly what you mentioned. It’s such a fight, and we have to answer all of these questions, and we do a lot of jury research and we talk to jurors after trials, win or lose. We do focus groups. It’s a very common question that we get, “Is all asbestos banned in the United States?”
When you tell them, “No, it’s not,” then the next question is, “Well, why not? If it’s so terrible how come it hasn’t been banned?” It’s a hard question and it’s something that you really have to dig in with jurors and you have to explain to them this regulatory framework that we live in and what I think is that it’ll help. It’s not going to eliminate all the issues that we have in these cases. They’re still going to say, “Well, gosh, it was just banned. We thought for 50 years it was fine,” but it certainly takes away an argument that they didn’t have three weeks ago before this ban came into effect.
We can now say, look, the EPA has said two very important things about asbestos. Three important things. First of all, they say that all fiber types are capable of causing disease, and they’ve said that forever. Number two, they say that it doesn’t take a lifetime of exposure or what people would say is an outrageously long period of exposure to cause mesothelioma. That’s all fiber types. It’s said that for a long time. Now it says that every type of asbestos product, including chrysotile asbestos, needs to be gone, needs to be out. I promise you the defendants are going to aggressively fight that issue and try to get that excluded and argue that a ban today has nothing to do with what they were doing 20, 30, 40 years ago.
We’ll argue, “Look, it used to be that you wanted the fact that it hadn’t been banned to get in,” and I’ll be able to tell all these courts what their position used to be. Their position used to be, “Yeah, we get to tell that there’s never been a ban on chrysotile asbestos.” Well, today there is, and hopefully it’s just one more piece of evidence for the jury to consider, for the courts to consider that this is a harmful product, that this product is capable of causing disease, that it has caused disease in tens of thousands of people over the last 40, 50 years. The EPA has been trying to get it banned for a number of years, has been fighting folks like these defendants that are in this courtroom right now, has been fighting these folks trying to get it banned and now it, in fact, is banned. I can’t imagine this hurting future litigants and current and ongoing cases.
I’ll concede that it’s not going to be the death blow or the most critical piece of evidence to any case. We still have to prove all the things that we have to prove, and we’re usually able to do it, but it takes something away from them. I promise you they didn’t like it. They didn’t like when this announcement came out. They’re not going to like it when we mention it in front of the judge. They’re going to try to get it excluded and to prevent the jury from having this piece of information.
Inevitably, when we’re in the middle of the trial, sometimes judges will allow the jurors to ask questions. We always get that question.
John: Right, “has it been banned?”
Paul: I just think it would be highly prejudicial to our side for this fact, this living, breathing fact, to exist and to not be able to tell the jury that, “Now everything’s been banned in this country and it’s not because the government thinks it’s safe, it’s not because the government thinks that it takes so much exposure. The government banned it because its position has been for 40, 50 years since the existence of the EPA, its position’s been that all types cause disease and any kind of exposure can get disease. We’re taking this product off the shelf so we can begin to reduce that risk to future generations so their families don’t have to go through what tens of thousands of other families have gone through over the last 50, 60, 70 years.”
How the EPA Ban On Asbestos May Influence Future Awareness and Educational Efforts
John: Right. Going back to the public health issue, how might this development influence future awareness and educational efforts regarding the dangers of asbestos exposure?
Paul: Well, I hope that, certainly, people will get an accurate understanding of the health risks associated with asbestos and specifically chrysotile asbestos. We live in a world now where information is at your fingertips, but we also live in a world where there’s a lot of misinformation out there. Again, if you got on Google right now and you research the issue of asbestos-containing brakes, and chrysotile was the type of asbestos that was used in brakes, you’ll probably find some articles from industry or that were created by the asbestos industry. They don’t necessarily overtly say that they were. They would suggest that chrysotile asbestos in brakes was safe, harmless, not going to cause anybody any health problems.
Now I would hope that what’s going to be at the forefront of anybody’s research is that the EPA has now banned all fiber types of asbestos, and that hopefully it’ll help folks understand that this is not something that you should take lightly. This isn’t something when you’re 18, 25, 30 years old, you think, “Oh, I’m invincible. It’s no big deal. This is just one or two days of exposure.” I really think that this is going to go a long way to continue to educate people.
We do jury trials all the time, and actually, I think most people do think that asbestos is harmful. They hear asbestos, they’re like, “Well, you don’t want to be exposed to asbestos.” But they start hearing things and they start researching things even though we know they’re not supposed to. The courts tell them, “Don’t research anything,” but we know what happens. It’s just the way it is. This is 2024. Everybody has lots of information at their fingertips, and we’re hoping that from a legal standpoint, from a lawsuit standpoint, that people don’t get bad information.
But more importantly, from a health standpoint, we want the most accurate information out there. I don’t want people to have to do what I do for a living 40, 50 years down the road. I just want people to not have this exposure anymore and to not run the risk of when their life is going good in their retirement years or, God forbid, when they’re young and still have kids and a young family and a whole life ahead of them, that they develop this cancer. Hopefully now when people do their research and maybe are at a job site and their employer or the premises owner or somebody that has less-than-pure motives tells them that what they’re working with is okay, that it’s no big deal, “just get back to work”, hopefully this will be something that’ll be front and center of any research they do, and they’ll be able to know the right questions to go ask.
Also, you hope that it’s just a little bit more information for physicians. I know it’s crazy. We have gosh-knows how many physicians in the United States, and most of them don’t specialize in asbestos-type of diseases. Most of them certainly have no particular knowledge concerning asbestos diseases, the uses of asbestos. Just perhaps if somebody takes this information back to their doctors and their doctor says, “Well, I just saw that EPA just banned all types.”
I actually got a call the other day from a client who told me that their doctor said not to be concerned about past exposure, just worry about prospective exposure. I don’t agree with that, but at least that’s one step in the right direction. Remove yourself from the exposure.
John: Sure.
Paul: It’s probably a little unclear as to exactly how much impact this will have, but again, it can’t be a bad thing, the government issuing a significant proclamation that something that’s been in use for 80, 90 years now is completely banned in this country. It can’t be a bad thing, and hopefully people will get the information they need, be able to make decisions, and not put themselves at risk. That’s all we’ve ever wanted.
If Someone Has Developed Mesothelioma, What Should They Do?
John: Absolutely. So then, finally, if somebody has been exposed to asbestos in the past or could be currently being exposed and they’ve now developed mesothelioma, what should they do?
Paul: We’ve talked about this in a lot of other podcasts we’ve done. The problem with mesothelioma is, unfortunately, at this point in time, it’s terminal cancer. You hear the rare success story every now and again, but for the most part, people pass away from this disease within a couple years of diagnosis, sometimes a lot quicker. Getting your medical treatment and a medical strategy in place is certainly the most important task that I think folks need to do. Depending on what stage they’re in, there are surgeries that can be performed, there are different types of chemotherapy treatment, there’s radiation, there’s immunotherapy. The younger people are the better the outcome and a larger period of survival. It’s very, very important that you and your family feel comfortable with the medical care and situation.
Unfortunately, in Kentucky, where I’m at, in most states, there’s a statute of limitations for pursuing any case against any wrong party who caused this cancer. While you’re working on your medical plan, I think it’s important to consult an attorney, an attorney who knows these cases, knows how to identify the parties that caused or contributed to this cancer, knows the jurisdiction in the court. You should talk to an attorney immediately and hopefully retain somebody that you feel comfortable with because that person’s going to be your biggest and best advocate for the length of your case. That person is going to be the difference between whether you have sufficient resources while you’re fighting this cancer and also, will you leave sufficient resources to your family that may need that to survive.
Unfortunately, things don’t get better as time progresses. Six months post-diagnosis, your medical situation could take a significant downward turn. Co-workers may pass away. Co-workers may not be found. A year goes by very, very quickly when you’re pursuing a lawsuit, so it’s very important to do two things, get your medical situation in the best possible place that you and your family are comfortable with, at peace with. But if you are considering holding someone else accountable or just want to get information about what can be done, contact an attorney. Contact an attorney that knows what they’re doing, has experience with these cases, and find out what your rights are, and then make a decision as to what is best for you and your family and what you want to do about it.
John: All right, well that’s really great information, and I really hope that this EPA ban on asbestos really has some significant effects moving forward in terms of public health in this country. Thanks again for speaking with me, Paul.
Paul: Thanks, John. Have a great day.
John: You too. And for more information about mesothelioma and asbestos exposure, visit the law firm of Satterley & Kelley at satterleylaw.com or call (855) 385-9532.