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9/25/2008
EPA Ignores Science to Support Outdated Asbestos Carcinogenicity Model
The EPA recently proposed the adoption of a new model to assess the potential risk of developing cancer from exposure to asbestos. The proposed new model would, for the first time, take into account differences in asbestos fiber type (for example, amphibole v. chrysotile) and size. The EPA’s current model, which it adopted in 1986, treats all asbestos fibers, regardless of type or size, as equally harmful. However, over the years, scientists have conducted studies which have led to the conclusion that amphibole asbestos fibers are more harmful than chrysotile asbestos fibers. The EPA has been aware of these studies. Nevertheless, the EPA and other government agencies have chosen not to change their regulations to account for differences in toxicity among different asbestos fiber types and sizes.
Several members of the scientific and legal communities voiced criticism of the proposed new model during the public meeting held in July of 2008. Randy Rabinowitz, a representative of the American Association of Justice (formerly the Association of Trial Lawyers of America) cautioned that the asbestos industry may attempt to take advantage of a finding that one type of asbestos fiber is more toxic than another as part of its legal defense. Mr. Rabinowitz’s suggestion that the EPA’s regulations could impact asbestos tort litigation highlights the importance of this issue particularly since the admissibility of regulatory findings in tort cases, such as those adopted by the EPA, is left to the discretion of the trial judge.
The EPA’s Science Advisory Board will release its report on the proposed new model in the next few weeks. It is likely that the Science Advisory Board will recommend against the adoption of EPA’s proposed new model. While there are indications that the Board supports the conclusion that the degree of risk varies with different asbestos fiber types and sizes, the Board will likely recommend against the adoption of the new model on the grounds that existing data is not sufficient to support the proposed model. This is a politically driven conclusion that results from the inherent bias of the plaintiff-friendly composition of the decision makers. As a result of this decision, the EPA will likely continue to adhere to the model that it adopted in 1986 which treats all asbestos fibers, regardless of type or size, as equally harmful.
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