DuBose Law Firm, PLLC

Main navigation

You are here: Home / Archives for Asbestos

Asbestos

#TRUCKING DANGER: SAY NO TO HB19 & SB17!

By

Republished from Texas Watch www.texaswatch.org

Large truck danger

Year after year, Texas has the highest number of large truck wrecks in the nation. From 2016 to 2019, the number of truck crashes in our state increased by almost 30%. To protect the lives of Texas families, we need more safety measures, not less. Legislation pushed by trucking lobbyists will endanger all of us on the roads.

HB19 and SB17 will harm families devastated by 18-wheeler wrecks. These bills give trucking corporations less incentive to follow safety measures, which means you and your family will be at greater risk on the roads. The bills will make it harder to punish trucking companies through our courts when they violate safety standards. When bad actors do not follow the rules, they need to be held fully accountable by a jury of our peers in order to help protect us all. And when recklessness causes death, serious injuries, or the inability to work, trucking companies must take responsibility.

Please contact your Texas state legislators and let them know you oppose HB19 and SB17!

Global Asbestos Awareness Week

By

Easily inhaled asbestos fibers

The theme of the 2021 Global Asbestos Awareness Week is “One Word. One Week. One World.” Since 2005, the Asbestos Disease Awareness Organization (ADAO) has hosted a week of education and action to end the use of asbestos. Though the dangers of asbestos have been known for decades, there remains a need to educate the public and those in office who can make a difference in its importation and use. April 1-7 of each year we are reminded that this danger still exists and threatens lives. Since the first Global Asbestos Awareness Week in 2005 until today, it is estimated 600,000 Americans lost their lives to asbestos-caused illnesses.

U.S. Senate passed 16th resolution for “Global Asbestos Awareness Week”

The Senate once again formally recognized the need for public exposure to the dangers of asbestos. Linda Reinstein, mesothelioma widow and ADAO co-founder, congratulated the Senate for the passage of S. Res. 145. Reinstein wrote, “We are grateful to Congress for passing this resolution and once again putting the dangers of asbestos exposure on the national radar, but we must do more.” She further emphasized, “With this continuation of use and an increase in imports, awareness of the dangers of asbestos, and an eventual ban on imports and use, are more important than ever. Unlike the more than 70 countries that have banned asbestos, Americans remain at risk of asbestos exposure every day from a variety of places, including our schools, homes, workplaces, and from unsuspecting products on consumer shelves like toys and cosmetics.”

What are the dangers of asbestos?

Asbestos is a mineral that can be used in the manufacture of many products, including insulation, shingles, brake pads, tile mastic, cosmetics and hundreds of other uses. Though it’s been known for over a century that asbestos exposure can be deadly – no matter the level of exposure ­– there is still no ban in the United States.

Inhalation of asbestos causes a spectrum of diseases including asbestosis, lung cancer and mesothelioma. There is currently no cure for mesothelioma – a disease which can be caused by even brief or intermittent asbestos exposures. 

How can Global Asbestos Awareness Week help?

Each year, goals are set to push forward the asbestos banning agenda. This year there are four main points:

            • Banning the mining, manufacturing, and use of asbestos

            • Preventing asbestos exposure

            • Increasing compliance and enforcement of existing laws and regulations

            • Strengthening international partnerships

Reinstein reported, “The United States imported nearly 30 percent more asbestos in 2020 than in the prior year. With this continuation of use and an increase in imports, awareness of the dangers of asbestos, and an eventual ban on imports and use, are more important than ever.”

What can you do to help?

If you suspect asbestos in your home or business built before 1980, have an abatement professional inspect before any remodeling or disturbance of the material. If you’ve been exposed, let your doctors know so they can create a baseline and monitor you for signs of asbestos disease.

During this Global Asbestos Awareness Week, let your congressional and senatorial representatives, as well as the Environmental Protection Agency (EPA), know your concerns and the need for a ban. This is long past due; let’s make it happen!

Protecting the Right to Organize Act – PRO Act

By

The Protecting the Right to Organize Act, or PRO Act, is a proposed United States law that would amend previous labor laws such as the National Labor Relations Act, for the purpose of expanding labor protections related to employees’ rights to organize and collectively bargain in the workplace. It would prevent employers from holding mandatory meetings for the purpose of counteracting labor organization, and it would strengthen the legal right of employees to join a labor union. The PRO Act would weaken “right-to-work” laws, which exist in 27 U.S. states. It would allow the National Labor Relations Board to fine employers for violations of labor law and would provide compensation to employees involved in such cases.

Background

The Protecting the Right to Organize Act, also known as the PRO Act, follows a series of past legislation passed by Congress concerning labor rights. A number of landmark bills were passed during the New Deal period, including the Fair Labor Standards Act of 1938, which President Franklin D. Roosevelt considered one of the most important Acts of Congress at the time.

Following the New Deal, a number of bills were passed which restricted the activities of labor unions. Among these was the Labor Management Relations Act of 1947 (commonly known as the Taft-Hartley Act), which among other things prohibited secondary boycotts and closed shops.

In 2009, the Employee Free Choice Act, another bill which would have amended the National Labor Relations Act, failed to pass.

In the State of California, following the passage of California Assembly Bill 5, Proposition 22 was passed in 2020. Proposition 22 was intended to classify so-called gig workers for app-based companies (such as Lyft, Uber, DoorDash and Postmates) as “independent contractors” rather than full employees.

Content of the PRO Act

The PRO Act would amend the National Labor Relations Act of 1935 (also known as the Wagner Act), the Taft-Hartley Act, and the Labor-Management Reporting and Disclosure Act of 1959 (also known as the Landrum–Griffin Act).

According to the summary text of the PRO Act, it revises definitions under labor law, permits labor unions to encourage participation in secondary strikes, and prohibits employers from litigating against unions which conduct such secondary strikes:

Among other things, it (1) revises the definitions of employee, supervisor, and employer to broaden the scope of individuals covered by the fair labor standards; (2) permits labor organizations to encourage participation of union members in strikes initiated by employees represented by a different labor organization (i.e., secondary strikes); and (3) prohibits employers from bringing claims against unions that conduct such secondary strikes.

The PRO Act would prevent employees seeking to join a labor union from being fired. It would also allow unions to override “right-to-work laws”, allowing labor unions to collect dues from all employees in a workplace, regardless of whether or not they are a member of a labor union. Right-to-work laws exist in 27 U.S. states, and the PRO Act would weaken these laws in favor of workers. It would also make illegal company-sponsored mandatory meetings used to counteract and discourage attempts at labor organization. The PRO Act would classify some workers who are classified now as “independent contractors”, instead as “employees”. The bill would amend the National Labor Relations Act to define an employee as:

“An individual performing any service shall be considered an employee (except as provided in the previous sentence) and not an independent contractor, unless—

(A) the individual is free from control and direction in connection with the performance of the service, both under the contract for the performance of service and in fact;

(B) the service is performed outside the usual course of the business of the employer; and

(C) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.”

This definitional amendment would allow for certain workers, such as those working in the gig economy, to attain the right to form a labor union or to bargain collectively. This would potentially include those who work for app-based companies such as Uber, DoorDash, or Lyft, and overall could include hundreds of thousands or millions of workers. The bill would allow for workers to sue employers and would make it easier for employees to join a union.

Support for the PRO Act

A letter signed by over 100 labor unions, advocacy organizations, churches, and political groups supported the PRO Act. This included but not limited to the AFL-CIO, EPI, Public Citizen, AFT, Sunrise Movement, CPD, SEIU, PFAW, CWA, FoEI, HRW, USW, IWPR, GBCS, IFPTE, NETWORK, Patriotic Millionaires, and Oxfam. Richard Trumka of the AFL-CIO said, “If you really want to correct inequality in this country … passing the PRO Act is absolutely essential to doing that.” The bill has received backing from the Labor Caucus and The Leadership Conference on Civil and Human Rights. Joe Biden endorsed the PRO Act, and has called labor law reform one of the top priorities of his administration.

Legislative Activity

On February 4, 2021, Rep. Bobby Scott (D-VA-03) introduced the Protecting the Right to Organize Act of 2021 in the House of Representatives. Of the bill’s 213 cosponsors, 3 – Brian Fitzpatrick (PA-01), Jeff Van Drew (NJ-02), and Chris Smith (NJ-04) – were Republicans; the other 210 were Democrats.

The bill passed in the House of Representatives by a vote of 225 to 206 on March 9, 2021. Five House Republicans (Brian Fitzpatrick, John Katko, Chris Smith, Jeff Van Drew, and Don Young) joined the House Democrats in voting for it, while one Democrat (Henry Cuellar) voted against it. The bill now advances to the U.S. Senate; however, the bill is unlikely to pass as it would require universal Democratic support and 10 Republican crossover votes to pass in case of a filibuster.

Photo by Thibault Penin on Unsplash

Federal Task Force OKs Free Lung Cancer Early Testing

By

Free lung cancer screening

The U.S. Preventive Services Task Force (USPSTF) says the benefits of free lung cancer early testing could be significant – especially for women and Black people. This task force is an independent assembly of 16 physicians and scientists who evaluate medications and tests. As a federally appointed group, they have recommended major changes in how, who and when people should begin this testing for lung cancer.

Under the Affordable Care Act, private insurers must cover services, without patient cost-sharing, that receive “A” or “B” recommendations from the task force.  The lung-cancer screening recommendation received a “B” rating.  Medicare also generally follows the group’s recommendations.

Why invest in these additional scans?

Lung cancer is the leading cause of death from cancer. While lung cancer diagnoses are fairly low before the age of 50, it increases rapidly after that age and especially after 60 years of age.

However, the survival rate is higher when the disease is caught in the earliest stages.   The conclusion of the task force was that broadening eligibility for lung cancer screening would save a substantial number of lives each year. 

How should people be tested?

Testing would begin with an annual low-dose computed tomography (LDCT) scan. People with cancer have a much better chance of survival when diagnosed early. This type of screening identifies small possible cancers and has shown a substantially reduced risk of dying from lung cancer.

However, it does have limitations. LDCD doesn’t detect all types of lung cancer. When it does detect cancers, it may not be at an early stage and does not ensure an avoidance of death from the disease. Detection of a false positive is also a possibility. This may mean additional tests and anxiety for the patient.

Who should receive lung cancer early screening?

According to the USPSTF 2021 recommendations:

Adults 50 – 80 who have smoked approximately 1 pack a day for 20 years.

In all cases, the testing is for people who currently smoke or quit within the past 15 years.

Those who develop lung cancer from exposure to asbestos would definitely benefit from earlier and frequent testing. Smoking paired with asbestos exposure leads to a much greater risk for lung cancer than those with similar smoking habits and no asbestos exposure.

What age should testing begin?

According to the new proposed guidelines, testing would start at 50 for those who meet the qualifications. This should be followed with annual checkups.

Is this covered by insurance?

Through a provision of the Affordable Care Act, since this lung cancer recommendation has a “B” rating from the task force, costs are covered by private insurers. There is also no cost-sharing by the patient. Medicare generally follows the task force’s guidance.

Varying opinions on lung cancer early testing

“We have to find these lung cancers early. It’s a very minimal test,” according to Roy S. Herbst, a lung-cancer specialist at the Yale Cancer Center. He is enthusiastic that identifying this cancer at an early stage means a better chance of treating or curing it. Estimates claim fewer than 5 percent of eligible Americans have had screening for lung cancer.

On the more cautious side, Daniel S. Reuland, professor of medicine at the University of North Carolina School of Medicine, co-wrote an analysis of pros and cons. In that analysis he said, “Screening high-risk people with low-dose CT can reduce lung cancer mortality but also causes false-positive results leading to unnecessary tests and invasive procedures, overdiagnosis, incidental finding, increases in distress, and, rarely, radiation-induced cancers.” Follow-up tests can be costly and cause anxiety. He and other physicians believe that along with the screening must be shared decision making between doctors and patients. The pluses and minuses need to be explained to the patient before testing.

Dr.  John Wong, a member of the task force and an internist at Tufts Medical Center in Boston, believes finding a potentially lethal cancer at an early stage far outweighs the harms. Though follow-up tests from a screening might cause some anxiety, “if you miss a lung cancer, then it might spread and shorten your life.”

New Turn for Asbestos Reporting Under TSCA

By

asbestos photo

A court ruling in the final days of 2020 for asbestos reporting under the Toxic Substance Control Act (TSCA) may finally steer the EPA’s review of asbestos back in the right direction.

How the incoming Biden Administration responds to these developments will impact whether asbestos is finally labeled a toxin under TSCA and the extent of new asbestos reporting requirements for continued industry use of asbestos.

Background

A 2016 bipartisan amendment to TSCA created an agency review standard that seemed likely to result in asbestos finally being identified by the EPA as a toxin.  However, the EPA under the Trump Administration created a very narrow analysis based on too little information.  Legal challenges to that approach, coupled with the COVID-19 pandemic, slowed the final scope and status of the EPA’s asbestos risk analysis. Though the EPA released the first part of its risk evaluation on December 30, 2020, a federal district court decision handed down on December 22, 2020 could force the EPA to drastically change its assessment.    

Court ruling involving asbestos reporting

The federal district court ruling involved two cases – one brought by the Asbestos Disease Awareness Organization (ADAO) and a second filed by several states attorney generals.  Judge Edward Chen, in his 36-page ruling, found that the asbestos-containing products identified by the agency during the rule making process “appear to be only the tip of the iceberg.” Chen also held that gaps in the agency’s information create risk evaluation models which don’t have the ability to “make accurate assessments that capture all ‘reasonably available’ data.”

The Court ordered the EPA to make significant changes to its TSCA Chemical Data Reporting (CDR) Rule to close several loopholes. These include considering more in-depth information about potential uses of asbestos for its risk evaluation.  Judge Chen’s order also addressed closing two additional loopholes:  ending the reporting exemption for products with “impurities” (like asbestos contaminated talc products) and requiring current processors of asbestos products to report those uses. 

What happens next?

Assuming the Biden Administration chooses not to appeal Judge Chen’s order,  the district court’s opinion will require EPA to amend its TSCA Chemical Data Reporting (CDR) Rule to require additional asbestos reporting from companies using asbestos and raw material that may be contaminated with asbestos – such as talc-based cosmetics. The data gathered through additional reporting may require the EPA to revise its conclusions or conduct yet another evaluation.  

This will impact not only the EPA’s Part 1 – risk evaluation of current asbestos uses, but Part 2 as well – risk evaluation for legacy uses of asbestos. Safer consumer products and cosmetics could also be the upshot of more stringent asbestos reporting requirements.