The EPA's March to Ban Asbestos: 2020 Draft Risk Evaluation.

• Author: Weglarz, Claire C.

Claire C. Weglarz is a first-chair trial attorney with Hawkins Parnell & Young, LLP in Los Angeles. She represents public and private entities in high-risk litigation nationwide in a broad range of industries, from energy and chemicals to manufacturing, automotive and consumer goods. She has extensive experience in product liability, environmental claims and toxic exposures to asbestos, talc and various chemicals. She is also a registered patent and trademark attorney.

Eric T. Hawkins is a partner in the Atlanta office of Hawkins Parnell & Young, LLP, and his practice focuses on product liability, toxic tort, environmental and related claims. He defends a wide variety of complex claims involving asbestos, talc, silica, benzene, premises liability and personal injuries. He works in roles as national and local counsel for corporate clients where he develops and outlines strategy in numerous jurisdictions.

Evelyn Fletcher Davis is a senior partner at Hawkins Parnell & Young, LLP. As one of the leading toxic tort and product liability defense lawyers in the U.S., she has tried, managed and settled thousands of complex cases. She has litigated cases involving exposures to asbestos, silica, mold, benzene and other chemicals, in addition to personal and commercial insurance liability. She serves over 40 corporations as national, regional or local counsel with emphasis on Florida, Georgia and Alabama.

IN MARCH 2020, the U.S. Environmental Protection Agency released a Draft Risk Evaluation for Asbestos, coinciding with the agency's fiftieth anniversary. This article looks at why the EPA was created and how the agency's work has evolved from policing against widespread environmental pollutants in its early years to devoting significant resources in 2020 on a reevaluation of asbestos, a mineral that is rarely used and highly regulated in the U.S.

EPA's Draft Risk Evaluation will be used by asbestos personal injury attorneys to bolster their chrysotile product cases and undermine the opinions of defense experts if the report is published in its current form. The draft report states, "EPA identified cancer risks from inhalation exposure to chrysotile asbestos." (1) Areas where EPA's draft report finds an "unreasonable risk to workers" from chrysotile asbestos exposure include "processing and industrial use of asbestos-containing diaphragms, processing and industrial use of asbestos-containing sheet gaskets and industrial use of asbestos-containing brake blocks, aftermarket automotive asbestos-containing brakes/linings, other vehicle friction products, and other asbestos containing gaskets." (2)

Since the draft report's publication, over seventy individuals or trade associations submitted comments to EPA, including defense experts Charlie Blake, John Spencer, and Drs. Michele Carbone, Bruce Case, David Garabrant, Bryan Hardin, Art Langer, Suresh Moolgavkar, Brooke Mossman, Dennis Paustenbach, Bertram Price, Coreen Robbins, Victor Roggli, Jennifer Sahmel, and Thomas Sporn. On June 8-10, 2020, EPA conducted a peer review meeting at which Drs. Garabrant, Paustenbach, Roggli, and Moolgavkar offered additional comments.

The draft report is controversial with respect to its conclusion as to the cancer risk of chrysotile asbestos products and because of the one-sided inclusion of paid experts for asbestos plaintiffs' law firms on key peer review committees that are reviewing the draft report: the Toxic Substances Control Act (TSCA) Science Advisory Committee on Chemicals (SACC) and TSCA SACC Ad Hoc Peer Reviewers. The peer reviewers include three testifying experts for asbestos plaintiffs: Drs. Henry Anderson, Steven Markowitz, and Marty Kanarek. There are no experts who testify for asbestos defendants or both defendants and plaintiffs on the peer review groups. The International Association of Defense Counsel joined a June 2020 comment submitted by the U.S. Chamber of Commerce, U.S. Chamber Institute for Legal Reform, National Federation of Independent Business Small Business Legal Center, American Property Casualty Insurance Association, Coalition for Litigation Justice, Inc., American Tort Reform Association, Aerospace Industries Association, Product Liability Advisory Council, Inc., and Washington Legal Foundation to object to the lack of balance on the EPA's peer review committees for the draft report. (3 )The comment noted that EPA's decision to include experts who only testify on behalf of plaintiffs may lead the committee to stray from objective science and limit discussion on divergent opinions.

Experts who receive significant fees testifying on behalf of asbestos plaintiffs have been involved in the EPA's asbestos risk evaluation since at least 2017. For example, in March 2017, Dr. Arthur Frank, a frequent expert for asbestos plaintiffs, sent the EPA a 216-page document that he admittedly put together with the assistance of a plaintiff attorney with whom he works in asbestos litigation matters. (4) Dr. Frank regularly uses this same document as his report in asbestos litigation. In another instance, Dr. Frank and another asbestos plaintiffs' expert, Dr. Barry Castleman, met with an EPA deputy administrator to promote the selection of asbestos for this type of evaluation and share their view on the risks of asbestos. (5 )The Asbestos Disease Awareness Organization (ADAO), a lobbying group that advocates for the "need for a global asbestos ban," (6) and plaintiff experts Drs. John Dement, Richard Lemen, Jacqueline Moline, and Christine Oliver submitted written statements outlining these issues during the comment period. Drs. Frank, Moline, Castleman, Compton, and Lemen gave oral testimony at the EPA's June 2020 hearing.

EPA performed the asbestos risk evaluation in accordance with the Frank R. Lautenberg Chemical Safety for the 21st Century Act of 2016, which amended the Toxic Substances Control Act (TSCA). Prior to this amendment, the EPA performed a similar risk evaluation of asbestos under TSCA in the 1980s. The first risk evaluation resulted in a 1989 ban of many asbestos-containing products. That ban was largely overturned in the courts. Since the 1989 ban was overturned, the EPA has failed to regulate any existing chemicals using TSCA. When the Lautenberg Chemical Safety Act was signed into law, President Barack Obama remarked the legislation was necessary, saying, "The [old] system was so complex, it was so burdensome that our country hasn't even been able to uphold a ban on asbestos." (7)

The Lautenberg Chemical Safety Act requires the EPA to conduct risk evaluations "to determine whether a chemical substance presents an unreasonable risk of injury to health or the environment, without consideration of costs or other nonrisk factors." (8) This requirement is contrary to Congress's express intent that the EPA "shall consider the environmental, economic, and social impact of any action [it] takes or proposes" under TSCA. (9)

The Draft Risk Evaluation for Asbestos is EPA's first reassessment of the risks of asbestos in decades. A peer review meeting on the evaluation originally scheduled for April 2020 was temporarily postponed due to COVID-19 closures. The agency set a public comment deadline of June 2, 2020 (10) and conducted a public meeting on June 8-10, 2020. Because the comment period and public meeting occurred during a "shutdown" phase of the COVID-19 pandemic, affected entities are operating at less than normal capacity and on strained budgets. The timing of the public comment and peer review periods has created due process issues, including the inability to obtain information and documents necessary to adequately comment because of long processing times for Freedom of Information Act requests and the denial of expedited processing on those requests.

The use of asbestos in the United States is very limited and highly regulated, so the utility of the new risk evaluation is questionable. The EPA admits that the risk evaluation only addresses "a handful of very limited, still ongoing uses of asbestos." (11) Asbestos has not been mined or otherwise produced in the U.S. since 2002, and asbestos consumption has decreased from a record high of 803,000 tons in 1973 to an estimated 100 tons in 2019. (12) From 2013-2018, U.S. asbestos consumption was "less than 0.1% of peak consumption in the 1970s." (13)

The chloralkali industry accounted for nearly 100% of the nation's asbestos mineral consumption in 2019. (14) Specifically, asbestos diaphragms are used in eleven chloralkali plants which account for about one-third of U.S. chlorine production. (15) In 2019, "a small, but unknown, quantity of asbestos was imported within manufactured products, including brake blocks for use in the oil industry, rubber sheets for gaskets used to create a chemical containment seal in the production of titanium dioxide, certain other types of preformed gaskets, and some vehicle friction products." (16 )During the peer review hearing, the EPA discovered that some samples from the chlorine industry were double-counted, which may affect the EPA's final risk estimates. (17)

Asbestos is presently subject to extensive federal and state regulations and reporting requirements. The federal Occupational Safety and Health Administration (OSHA) oversees working conditions for United States workers by implementing and managing occupational safety and health standards, including...