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Asbestos
Mesothelioma Poisoning
H.R. 5442
Asbestos Information Act of 1988
Purpose and Section-by-Section Analysis
PURPOSE
This legislation is intended to facilitate the early identification of the manufacturer or processor of a particular type of asbestos or asbestos-containing material. Earlier identification should help reduce the time and costs associated with naming parties as defendants in asbestos litigation in which the products manufactured or processed by such person were not used in building which is the subject of the litigation. To accomplish this purpose, H.R. 5442 requires asbestos product manufacturers to submit to the U.S. Environmental Protection Agency (EPA), information on the types or classes of products, the years of manufacture, and other identifying characteristics of their asbestos-containing products. EPA must then publish this information.
EPA estimates that asbestos-containing material was used in the construction of some 750,000 public and commercial buildings in the United States. Asbestos is a known human carcinogen which can cause lung cancer, mesothelioma, and asbestosis when airborne fibers of the substance are inhaled. Because of this, many building owners have undertaken abatement projects to reduce asbestos exposure in their buildings. More abatement projects can be expected in the future.
Many owners have sued or will sue asbestos manufacturers for the cost of the abatement action. Plaintiffs in such asbestos cases often sue almost all asbestos manufacturing companies in the hope of recovering damages even though many of the companies may not have even produced the type of asbestos product in question. It is not uncommon to see as many as 50 manufacturers listed as defendants in an asbestos property damage case because of the lack of information about the identity of such materials, especially in preparation for the proceedings.
In these cases, defendants are reluctant to settle a case in which their product may not be present and plaintiffs are reluctant to overlook a possible supplier of asbestos materials as a defendant. Judges are reluctant to press either side to make concessions, thereby prolonging the case. The reluctance of all parties to push the case forward or to end it is often due to the unavailability of critical information to both claimants and defendants.
It is our hope that by making this information available at the initiation of a suit, the number of suppliers of asbestos-containing materials typically joined as defendants in asbestos property damage lawsuits might be substantially reduced. While the information may not help a plaintiff or court to identify with certainty the appropriate manufacturer(s) to name as defendant(s), it should help to eliminate from potential litigation those manufacturers that could not reasonably have been involved in producing the asbestos in question.
By making this information available at the start of judicial proceedings, procedural delays caused by the search for it or by litigation over its disclosure once a lawsuit is undertaken can be reduced. This information will also help to relieve the case load of a court system that is already heavily burdened. Manufacturers whose products are not present in the buildings can be spared being involved in lengthy proceedings. Cases may then be resolved in a more rapid fashion instead of the current situation where both building owners and manufacturers are ill-served by a system that prolongs the resolution of a case while costs for both sides inexorably mount.
SECTION-BY-SECTION ANALYSIS
Section 1: SHORT TITLE
The short title of the legislation is the "Asbestos Information Act of 1988."
Section 2: SUBMISSION OF INFORMATION BY MANUFACTURERS
This section requires any person who manufactured or processed asbestos or asbestos containing material that was prepared for sale or for use as surfacing material, thermal system insulation, or miscellaneous material in buildings to submit to the Administrator of EPA, within 90 days after the date of enactment: the years of manufacture; the types or classes of product; and to the extent available, other identifying characteristics reasonably necessary to identify or distinguish the asbestos or asbestos containing material. The purpose of this requirement is to facilitate the early identification of the manufacturer or processor of a particular type of asbestos or asbestos-containing material. It is our expectation that this early identification will help reduce the time and costs associated with naming parties as defendants in asbestos litigation in which the products manufactured or processed by such person were not used in the building which is the subject of the litigation.
In setting up this requirement, we are aware that not every product subject to the requirements of section 2 can best be identified by a description of the chemical or mineral constituents of the asbestos or material by weight or volume. By using the phrase "to the extent available," we do not intend that manufacturers must submit all information that exists regarding their products. Rather, this phrase must be read in conjunction with the phrase "reasonably necessary." In other words, of the information that manufacturers currently possess, they need only submit the information reasonably necessary to identify or distinguish the asbestos or asbestos containing material they manufactured.
For example, in most cases of asbestos-containing floor tile products, it is our understanding that, without regard to the availability of the mineral or chemical constituents (or both) of the asbestos or material by weight or by volume (or both), which does not exist for every type of floor tile made, in almost all situations the most accurate and least expensive way to identify the manufacturer of a floor tile is through examination of designs, patterns or textures of the floor tile. In addition, this assessment technique does not require the disturbance of the in-place material. Under the circumstances, it is our intent that any person who manufactured asbestos-containing floor tiles would, by the submission to EPA of the designs, patterns or textures of the products covered by section 2, be in compliance with the requirements of that section.
Section 3: PUBLICATION OF INFORMATION
This section requires the EPA Administrator to publish within 180 days after enactment the information submitted by the manufacturers. The EPA role under this bill is a narrow one: to inform asbestos manufacturers how, when, and where to submit the required information and then to receive, organize, and publish that information. In carrying out his responsibilities under this section, the Administrator may not review the submitted information for accuracy, or to analyze it to determine whether such information serves to identify or distinguish the particular asbestos or asbestos-containing material.
Section 4: DEFINITIONS
This section defines the following terms in the bill: asbestos, asbestos-containing material, identifying characteristics, miscellaneous material, protocol, surfacing material, and thermal system insulation.
Source: EPA
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