Issue 31: Summer 1998
Table of Contents:
1. Canadian Challenge to Chrysotile Prohibitions
2. T&N plc: The End of an Era
3. Asbestos Personal Injury Cases
4. News Round-up
1. Canadian Challenge to Chrysotile Prohibitions
On May 28, the World Trade Organization (WTO) received a formal request from the Government of Canada for consultations with the European Commission "concerning certain measures taken by France for the prohibition of asbestos and products containing asbestos." Although France was the eighth European Union (EU) member state to impose a total ban, it is the first whose action has been challenged. The loss of a significant market, previously accounting for six per cent of Canadian chrysotile exports, and the feasibility of bringing an action under the new WTO have encouraged the Canadians to initiate proceedings. At the press conference to announce the WTO offensive Ralph Goodale, the Canadian Minister for Natural Resources, confessed that: "The Government's objective is to maintain market access for chrysotile asbestos products, which are safe when used properly, according to the safe-use principle of the Government's Minerals and Metals Policy." Canadian Ministers are also "evaluating the possibility of recourse to the WTO" regarding an asbestos ban adopted by royal decree in Belgium in February, 1998 and the January, 1998 prohibition (Commission Directive 98/12/EC) within the European Union of all types of asbestos in brake linings for vehicles under 3.5 tons. No announcement has been made about the possibility of challenges to asbestos bans in Austria, Denmark, Sweden, Finland, Germany, Italy or the Netherlands but Canadian officials confirm that should the action against France be successful then other bans could be contested. The current Canadian complaint maintained that the French Decree of December 24, 1996 infringed sections of the following agreements: the Application of Sanitary and Phytosanitary Measures (SPM/Articles 2, 3 and 5), the Technical Barriers to Trade (Article 2) and the General Agreement on Tariffs and Trade 1994 (Articles II, XI and XIII). As the SPM cover "additives, contaminants, toxins or disease-causing organisms in foods, beverages or foodstuffs," the relevance to the chrysotile prohibition appears tenuous. In accordance with WTO dispute resolution procedures, the two sides have sixty days within which to resolve their differences. Should bilateral talks fail, Canada can request that a panel be established by the Dispute Settlement Body to examine the complaint. The first round of talks between the European Commission/France and Canada took place in Geneva on July 8. A WTO spokesperson suggested that the matter might also be raised at the July meeting of the Committee on Technical Barriers to Trade.
The Canadian action was not unexpected and follows a series of well choreographed initiatives which include high-level diplomatic representations, trade meetings and sponsorship of "scientific" workshops and conferences such as: The Scientific Workshop on the Health Effects of Chrysotile and the International Conference on the Safe and Responsible Use of Chrysotile Fibres which were held in Montreal last year. Since 1996, Denise Carrier-Perreault, Quebec's Provincial State Minister for Mines and Land Use, has conducted missions to France, Belgium, the UK, Algeria, Tunisia, Morocco, Colombia, Peru, Mexico, Malaysia and Vietnam during which "Quebec government officials explained the safe-use policy for asbestos and encouraged their hosts to adopt a similar policy." A four page "Chronology of Developments in the Asbestos Issue" contains details of Canadian interaction with asbestos industry officials, European diplomats and journalists from France, Belgium, the UK and Morocco. This document confirms the systematic approach and international scope of Canadian efforts. There has been widespread condemnation of Canada's methods and calls for an international ban on chrysotile. Rory O'Neil, a leading British activist, condemned Canada's "dirty game" and "crude bully-boy tactics" at press conferences in Sarnia and Windsor, Canada in May. During a Canadian radio interview Lesley Swartman, a government spokesperson, reacted saying: "there are no studies to prove that it's (chrysotile) unsafe if used properly... (the government) is afraid of the domino effect if the European market goes... the third world market will dry up." On June 19, the Windsor Cancer Prevention Coalition sent a letter to Herb Gray MP, the Canadian Deputy Prime Minister, accusing the government of using "lies and misinformation in its defence of asbestos. While arguing in Europe that asbestos substitutes are possibly as hazardous as asbestos or pose an unquantified risk, its Health Canada web site and advice to Canadians says it is unlikely that they pose a significant risk to the general population." At its annual conference in June, the International Construction Institute resolved to increase its efforts "to accelerate the implementation of a total ban on chrysotile asbestos." The International Association of Heat and Frost Insulators and Asbestos Workers, AFL-CIO has pledged its support for a total ban on asbestos in the UK saying that the Canadian arguments aimed at differentiating chrysotile from other forms of asbestos are "nothing new, and have in fact been considered and rejected by numerous scientists and at least two agencies of the United States Government, including NIOSH and the Occupational Safety and Health Administration (OSHA)." On June 15, the International Federation of Building and Wood Workers with thirteen million members in one hundred and fifteen countries, the European Federation of Building and Wood Workers and the Nordic Federation of Building and Wood Workers called for a "world-wide prohibition of mining, processing, commerce and use of asbestos." The Spanish Trade Union Confederation and the Spanish trade union, Comisiones Obreras, are also lobbying for national and European bans. Although Canada doesn't have a ban on chrysotile "few (Canadian) employers are willing to use asbestos products and risk compensation claims or work refusals" according to Cathy Walker, the National Health and Safety Director for the Canadian Auto Workers Union.
International protests against the Canadian government's support for the asbestos trade were held on June 30, the day before Canada Day when Canadian Embassies would be closed. Demonstrations took place in Copenhagen, Sydney and London. In a letter to the Canadian Embassy in Denmark, campaigners expressed their "disgust" at the WTO action and urged that it be withdrawn saying that: "Health experts all over the world recommend a ban on this material, the capability of which to cause deadly diseases, such as lung cancer and mesothelioma, has been scientifically acknowledged for more than 40 years." Trade unionists occupied the Canadian Consulate Generale in Sydney to "highlight the stupidity of what Canada is doing in defiance of the progress the world has made in recent times to totally stop the use of asbestos and products with asbestos." A rally attended by trade unionists, members of the Construction Safety Campaign, MPs, victim support groups, asbestos victims and their families at London's Canada House heard calls for a world-wide ban on all forms of asbestos. A delegation of four made representations to Canadian officials inside the High Commission. At the same time, a twenty piece orchestra was serenading Londoners and demonstrators outside the building with a selection of tunes in celebration of Canada's national holiday. An Early Day Motion entitled: Asbestos Demonstration at Canada House was put to the House of Commons on June 30. It condemned Canada's attempts to "peddle their deadly dust around the world" and urged "the UK Government to push ahead with a unilateral ban."
The certainty of a Canadian reaction has delayed a UK ban on chrysotile. On June 9, Angela Eagle told the House of Commons that: "Any decision by the UK Government to proceed with further restrictions on the importation, supply and use of chrysotile will be based on robust scientific evidence, thereby fulfilling obligations under World Trade Agreements." It appears that the preferred option is action taken within the security of a Europe-wide ban. To this end, the Health and Safety Executive (HSE) replied to an EU request for information on asbestos substitutes by commissioning the Institute of Environment and Health (IEH) to produce a report entitled: Chrysotile and Its Substitutes: A Critical Evaluation. This document concludes that: "The continued use of chrysotile in asbestos-cement products is not justifiable in the face of available and technically adequate substitutes. Likewise, there seems to be no justification for the continued residual use of chrysotile in friction materials." The IEH report was submitted to the Scientific Committee on Toxicity, Ecotoxicity and the Environment (SCTEE), an independent EU body which on February 9 had issued a surprising decision claiming that it was unclear whether "specific substitute materials pose a substantially lower risk to human health... than the current use of chrysotile." The chrysotile working group of the SCTEE heard several presentations at a Paris meeting on June 9; information from an IEH spokesperson was well received. Since the uproar caused by its earlier finding, the Committee has decreased its reliance on Canadian input and widened its contacts to include authoritative bodies such as the International Agency for Research on Cancer, the French National Institute for Health and Medical Research and the International Programme for Chemical Safety. No decision from the SCTEE is expected before Autumn, 1998.
Within the UK there has been considerable pressure by unions, victims' groups and others concerned about the inexorable rise of asbestos-related deaths. The Trades Union Congress (TUC) is calling for "a ban on the importation or new use of asbestos and asbestos products so that safer alternatives are used." On February 17, the TUC held a Parliamentary Day on Asbestos at the House of Commons and a public rally at Westminster Central Hall. An Early Day Motion, signed by sixty-four MPs on February 18, affirmed support for asbestos bans in the UK and Europe. Despite public and political support for a national ban, the Consultative Document (CD129): Proposals for amendments to the Asbestos Regulations and supporting Approved Codes of Practice published by the HSE on April 17, 1998 did not advocate a ban. The CD hid behind civil service-speak such as the following: "Available evidence suggests that these substitutes pose a lesser risk to health than chrysotile fibres. There have, however, been concerns expressed about the limited amount of good quality scientific evidence available for some of the potential substitutes." The main proposals in the CD relate to the tightening of exposure limits, introducing licensing provisions for work on asbestos insulation board and extending the duty of employers relating to respiratory protective equipment, training and compliance. Four days after the publication of the CD the Parliamentary Assembly of the Council of Europe, a body representing forty countries, accepted a report on asbestos which concludes that "Europe should make common cause in eliminating future asbestos use and ... legislative bans could be an effective solution to the asbestos problem." Behind the scenes, the HSE had sought clarification on the doubts over asbestos substitutes from the Department of Health's Committee on the Carcinogenicity of Chemicals in Food, Consumer Products and the Environment (CoC). The CoC was asked for "advice on the relative carcinogenic risks of three chrysotile-substitutes namely, polyvinyl alcohol (PVA) fibres, p-aramid fibres, and cellulose fibres." After carrying out a comparative risk assessment, the Committee concluded that the risk from these substitutes is "likely to be less than that posed by chrysotile." On July 21, the HSE issued a press statement which revealed that on the strength of the CoC's Opinion "a draft consultative document to extend the prohibitions on the importation, supply and use of white asbestos" will be considered at the August 18 meeting of the Health and Safety Commission.
2. T&N plc: The End of an Era
T&N plc, once the largest asbestos group in the UK, has been swallowed up by Federal-Mogul Corporation (FM), a Michigan-based manufacturer of automotive and vehicle components. FM announced that its £1.5 billion bid had been accepted unconditionally in early January, 1998. Two months later FM completed the financing and finalized conditions for the acquisition. The merged firm will have a ninety per cent share of the US bearings market. Half of the staff at T&N's headquarters has been made redundant although the legal department has been unaffected. Although T&N subsidiaries will be incorporated within existing FM divisions, FM has confirmed that T&N will be maintained "as a separate legal entity within the Federal-Mogul family." According to records held at Companies House, T&N plc became T&N Ltd. on June 30, 1998; asbestos-related claims are still being accepted at the company's Manchester offices.
Turner & Newall Ltd. was created in 1920 by the merger of Turner Brothers Asbestos Co. Ltd., J.W.Roberts Ltd., Newalls Insulation Co. Ltd. and The Washington Chemical Co. Ltd. The commercial exploitation of asbestos in building materials, automotive parts and insulation products was at the heart of the company's success but the asbestos-related claims which resulted and the uncertainty which these liabilities generated depressed shares and made the company vulnerable to take-over bids. In November, 1996 a one-off payment of £92m secured T&N an additional £500m layer of insurance cover for claims notified post-June 30, 1996; this cover can be accessed if the total value of claims received after June, 1996 exceeds £690m. Despite £1 billion of insurance cover, investors remained unconvinced. One UK analyst commented: "If they had merged the two companies, T&N would have taken 60 per cent of the group, but T&N's stock was undervalued and Federal-Mogul was roaring ahead." The spectre of asbestos claims doesn't seem to worry the new owners; FM intends to maintain T&N's insurance cover and to make a one-off provision of £367 million to ring-fence future asbestos charges. FM's General Counsel has said: "We are pleased with T&N's innovative efforts to manage this serious problem and intend to build on those efforts for the future." T&N's 1997 accounts promise that the take-over "will provide the resources required to match the provision set up in 1996 to meet past and future asbestos liabilities." In addition T&N has declared that group companies involved in asbestos-related litigation "aim to pay fair and proper compensation to meritorious claimants. Non-meritorious claims are defended vigorously." Ironically the take-over was financed with a bridging loan from the Chase Manhattan Bank, a company which had lost a $185 million property damage suit against T&N in 1995. A Summary Order of the US Court of Appeals for the Second Circuit issued on March 13, 1998 concluded: "We have considered all of Chase's remaining arguments on appeal, and we find them to be without merit." The fees from the broking of the T&N buyout must be some consolation for the Wall Street bankers.
3. Asbestos Personal Injury Cases
In many instances, asbestos personal injury cases in the UK are settled shortly before they get to trial. Last year, the widow of asbestos sprayer Eric Reid was offered a settlement of £200,000 on the courthouse steps. Mr. Reid died of mesothelioma at the age of fifty-four in 1996. The widow of university lecturer James Lewis received an out-of-court settlement of £150,000 from his employer in April, 1998. It was alleged that Lewis had been exposed to asbestos-containing products during the forty years he worked in the mechanical engineering department at London's Imperial College. Having lost an application to time bar a personal injury claim, Defendants Scruttons Limited and Essex Insulations Limited agreed to pay the surviving family of insulation worker Mr. Willenberg £35,000 in February, 1998 for his death in 1990 from mesothelioma at the age of 62.
Two recent asbestos trials have resulted in plaintiffs' victories. A sum of £60,676 plus interest was awarded by the Judge in the case Rooker-v- Metro Cammell Limited and J W Roberts Limited. Mr. Rooker died from mesothelioma of the pleura in 1989. When his widow started proceedings in November, 1996, the first defendants claimed that the action was statute barred under the Limitation Act of 1939. The Court debated the question of whether Mr. Rooker's exposure to asbestos in 1939-1940 and 1946-48 had resulted in "damage" by 1954. The Judge accepted Dr Robin Rudd's evidence that the physical process initiated by the inhalation of asbestos could not be classified as "damage." On February 19, 1998, the Court of Appeal issued a precedent-setting judgement in the case of Bryan Ward v Newalls Insulation Company Limited and Cape Contracts Limited. The Appeal Court increased the amount of compensation awarded to the former insulation worker now successful businessman from £440,167 to £749,795 plus interest. Lord Justices Butler-Sloss, Henry and Potter also ruled that "if at some future date the Plaintiff develops lung cancer and/or mesothelioma as a result of exposure to asbestos, he shall be entitled to apply to the Court for further damages."
4. News Round-up
The Treatment and Prevention of Asbestos Diseases and Asbestos and Cancer, volumes 15 and 16 respectively of the Sourcebook on Asbestos Diseases, were published in 1997.
Two substantial works on asbestos were published by French government departments during 1997: Effets sur la sante des principaux types d'exposition a l'amiante (Health risks of asbestos) by INSERM, the French medical research authority, and L'amiante dans l'environment de l'homme (Asbestos in the environment) by the Parliamentary Office of Scientific and Technological Assessment.
Published in June, 1998 the book: Against the Odds documents the struggle to control and upgrade public housing by a resident-controlled housing association in central London. One of the more formidable problems this group faced was the decontamination of two twenty-two floor apartment buildings which contained more than twenty miles of sprayed asbestos fireproofing.
The paperback book: Asbestos, Asbestosis and Cancer was published by the Finnish Institute of Occupational Health in 1997 and documents the proceedings of an international meeting aimed at developing "guidelines for diagnosing individual cases of asbestos-related diseases."
The consultative document: Proposals for amendments to the Asbestos Regulations and supporting Approved Codes of Practice is being circulated by the Health and Safety Executive; comments must be received by July 31.
Mechanisms in the Pathogenesis of Asbestosis and Silicosis by BT Mossman et al was published in The American Journal of Respiratory and Critical Care Medicine (Vol 157, 1998).
A commentary entitled: Chrysotile asbestos: enough is enough by MR Cullen appeared in The Lancet (Vol 351, May 9, 1998). Cullen warns: "as long as safer substitutes exist for most asbestos uses, and they do, the proposition of putting more asbestos into the environment, or of relaxing vigilance towards controlling exposure is foolhardy."
Dust Exposure and Lung Cancer in Quebec Chrysotile Miners and Millers by FDK Liddell et al and A Comparison of Historic Asbestos Measurements Using Thermal Precipitator With the Membrane Filter- Phase Contrast Microscopy Method by G Burdett appeared on April 1 in the Annals of Occupational Hygiene. Reproducing tests to measure airborne fibers in a factory spinning crocidolite sixty years ago, Burdett determined "that the historic datum level established in 1930 ... was equivalent to a personal exposure of about 20 fibres/ml (in today's terms) ... in conditions of good ventilation." During the colder months, much reduced ventilation would have produced higher indoor levels of asbestos.
The conclusion that the "EPA's model overestimated the risk of asbestos-induced lung cancer among women who lived in chrysotile-asbestos-mining areas between 1970 and 1989 by a least a factor of 10" attracted press attention when it appeared in the paper: Nonoccupational Exposure to Chrysotile Asbestos and the Risk of Lung Cancer by M Camus et al in the May, 1998 issue of The New England Journal of Medicine. The Editorial: Asbestos - Still A Carcinogen by PJ Landrigan which followed maintained that Camus et al's conclusion goes "beyond their data." Landrigan also pointed out that: "The observation by Camus et al of a more than sevenfold mortality rate from pleural cancer in mining areas, as compared with nonmining areas, corroborates an enormous body of literature showing that Canadian chrysotile, like all forms of asbestos, is a potent carcinogen."
The editorial: The Manipulation of International Scientific Organizations in the January-March, 1998 issue of The International Journal of Occupational and Environmental Health warned that Canada would challenge the French chrysotile ban as an unfair trade practice. The co-authors commented: "We leave it to others to fathom the justification for a panel of international trade economists to sit in judgment over national health policies so arduously attained."
In the editorial: ICOH Caught in the Act which appeared in the July-August, 1998 issue of The Archives of Environmental Health, J LaDou questions the impartiality of committee members of the International Commission on Occupational Health stating: "The WHO, IPCS and the ILO should neither request nor receive scientific opinion from the ICOH or its Scientific Committees."
M Martuzzi et al conclude that "the role of ambient asbestos in the etiology of lung cancer should be investigated further" in their paper Asbestos-Related Lung Cancer Mortality in Piedmont, Italy which appeared this year in volume 33 of the American Journal of Industrial Medicine. The scientists found that "the proportion of lung cancer deaths attributable to living in municipalities with increased pleural neoplasm mortality was 3.9%." An earlier paper: Mortality by Pleural Mesothelioma in the Province of Barcelona (Spain) by CA Gonzalez et al which was published in volume 101 (1993) of Medicina Clinica echoed some of these findings: "Part of the cases of pleural mesothelioma in the province of Barcelona may not be due to direct occupational exposure; thus there may be important domestic and/or environmental exposure."
The Sheffield Occupational and Environmental Lung Injury Centre was launched this year to provide a "comprehensive facility for the diagnosis and management of work related and environmental lung disorders." For further information telephone David Fishwick at: 0114 271 3631 or e-mail: firstname.lastname@example.org
Asbestos Alert, a video-based training package by the Construction Industry Training Board, provides basic information on the dangers and locations of asbestos-containing materials. Particularly useful is the footage of pipe and boiler lagging, insulation, drainage pipes, floor, kitchen and roofing tiles
Extracts from Bill Ravanesi's Breath Taken exhibition are at: http://www-busph.bu.edu/Gallery
Pictures of the June 30 asbestos demonstration in Australia are at: http://www.nlc.net.au/~glw
Spanish trade unions at: http://www.ctv.es/USERS/istas
The Spanish Network for Safety and Health at Work: www.mtas.es/insht/redsst
Annals of Occupational Hygiene: http://www.elsevier.nl/locate/aocchyg
The British Occupational Hygiene Society: http://www.bohs.org/
The Gobi Report on Asbestos http://www.gobi.co.uk
Compiled by Laurie Kazan-Allen