Issue 37: Winter 1999/2000
Table of Contents:
1. Brazil: Support Grows for Chrysotile Ban
2. T&N Exposed
3. Will New Code of Practice Assist Asbestos Plaintiffs
4. Post-ban Developments in the UK
5. News Round-up
1. Brazil: Support Grows for Chrysotile Ban
The 1999 recipient of The American Public Health Association's (APHA) prestigious International Occupational Safety and Health Award was Fernanda Giannasi, a Brazilian labor inspector. The Awards Committee praised Ms. Giannasi's commitment to worker health and safety, her role in publicizing "the double standards (of) the automobile industry regarding the continued use of asbestos in Brazilian plants in a manner that has been outmoded in Europe and North America for safety reasons," her participation in the setting up of ABREA, an asbestos victims group in Osasco, and her efforts to garner international support for the International Confederation of Free Trade Unions. The award ceremony, well-attended by members of APHA's Occupational Safety and Health Section, took place in Chicago on November 9. Introducing Ms. Giannasi, Barry Castleman described her working environment as one in which it was routine for factory inspectors to be physically threatened, remain unsupported by their government departments and be subject to criminal lawsuits by disgruntled manufacturers. In her speech, Ms. Giannasi accepted the award on behalf of all her Brazilian colleagues explaining that it would reinforce "our efforts to create a society where workers no longer pay with their health for the right to work."
The income produced by Brazil's asbestos cement industry was US$540 million in 1997. Twenty-seven factories in ten states manufacture two million tons of finished products annually. Forty per cent of production is exported to Japan, Thailand, India and dozens of other countries. This is an industry of great importance to the Brazilian economy and one which has been, naturally enough, resistant to calls for a ban. Last Summer, the Brazilian Environment Minister announced his government's intention to emulate the EU's timetable for the interdiction of chrysotile by 2005. The United Workers Confederation (CUT), Brazil's largest trade union, declared its support for the prohibitions on December 14, 1999. At the same time, the union launched a national campaign to raise members' awareness of the problems stemming from asbestos use. CUT is calling for government-funded early retirement for asbestos miners and government investment in new industries in the mining regions. On December 17, there was an anti-asbestos demonstration in Sao Paulo. Trade unionists joined with members of ABREA and the Ban Asbestos Network, local politicians and social activists to call at the head office of Saint Gobain, a company with extensive asbestos-cement interests in Brazil. Carlos William Ferreira, Marketing Director for Brasilit, one of Saint Gobain's subsidiaries, confirmed his company's plans to adopt non-asbestos technology. The demonstration moved on to the Canadian Consulate where leaflets were distributed and banners were displayed denouncing Brazil's alliance with the Canadian asbestos industry.
An asbestos conference, which will be held in Osasco next Autumn, is being organised by ABREA, the Ban Asbestos Network and The International Ban Asbestos Secretariat (IBAS). The choice of venue is significant. For more than fifty years, the manufacture of asbestos-containing goods (building materials and brake systems) exposed both workers and the local populace to high levels of contamination; predictably, the incidence of asbestos disease in this region is very high. Fernanda Giannasi has spear-headed the opposition to asbestos in Latin America. She is optimistic that this conference will achieve many things: "The congregation of asbestos victims, victims' advocates, scientists, health and safety experts, medical researchers and academics from all over the world will demonstrate to our government and the international asbestos industry the solidarity of the anti-asbestos movement. Our access to the best sources of impartial advice enables us to expose industry's concept of 'controlled use' as a total fallacy." For information on this event, please contact: Fernanda Giannasi at firstname.lastname@example.org or Laurie Kazan-Allen at email@example.com
2. T&N Exposed
During the school holidays, Robert Ballantine played with his friends on the riverbanks near his Sunderland home. There was a huge unfenced site which the boys favored; it was an idyllic spot to explore, play games, let off air-rifles and dig for treasure. During the dry Summer days, there was a lot of dust but the boys overlooked this. They weren't to know that the dust contained asbestos and that this dump, larger than the Royal Albert Hall, belonged to a subsidiary of the UK's biggest asbestos company. Mr. Ballantine died aged 50 from malignant mesothelioma on July 13, 1998. Although Newall's Insulation Co. Ltd. admitted liability for his environmental exposure, the company disputed financial elements of the case, claiming that a previous lump sum payment of £39,228 by the DETR under the 1979 Pneumoconiosis Act should be deducted from the agreed damages. On October 14, 1999 the High Court in Newcastle upon Tyne ruled that only £13,310 for nursing care and loss of earnings should be deducted from civil compensation of £144,473. The defendant plans to appeal the verdict.
Newall's Insulation (NI) was one of four specialist companies that merged to form Turner & Newall Ltd. (T&N), an enterprise which eventually dominated the UK asbestos industry. According to a government report: "from the time of its formation in 1920 T&N had steadily strengthened its position as the leading, indeed the dominant, producer of both fibres and asbestos products. Smaller manufacturers... certainly existed, but after 1928 none was comparable in size or range of interests to T&N." By the late 1930's, ten thousand people worked in all stages of asbestos processing at T&N's asbestos mines, factories and subsidiaries at home and overseas. "So prominent had the firm become that in 1939 it was obliged to issue a report denying that it was a monopoly, as it only had 20 per cent of the world asbestos market!" By the late 1950's its sales had overtaken those of US asbestos giant: Johns Manville: "while Johns-Manville had sales of $304.1 million in 1959, T&N had sales of $450 million the previous year." Of course, T&N is a well-known company; it is a frequent defendant in both US and UK personal injury cases. Although much has been written about the company (see Barry Castleman's authoritative: Asbestos: Medical and Legal Aspects), speculation has continued over the company's state of knowledge, effect on government health and safety legislation, levels of workmen's compensation, legal strategies and attitude towards dust control. These and other subjects are dealt with in remorseless detail by Dr Geoffrey Tweedale in a new book: Magic Mineral to Killer Dust: Turner & Newall and the Asbestos Hazard. Pain-staking research and access to a vast archive of internal corporate documentation shed light on how a substance once revered for its versatility and indestructibility was also a ruthless occupational killer. Placing the individual corporate behaviour within the historical context of the twentieth century, the preface explains: "The micro-environment of Turner & Newall provides an understanding of the wider social and economic climate in which the asbestos business operated... This book is not simply a muckraking tale of corporate misconduct (though some may choose to read it that way)... the failure by management, capital, the state, and labour to provide effective safeguards against asbestos inevitably has a considerable contemporary relevance for debates about every aspect of occupational health -- a subject we neglect at our peril."
A thorough and at times harrowing examination of medical files, company reports, memoranda and correspondence led Tweedale to conclude: "The company's attitude towards matters of health over so many years may be regarded as strikingly irresponsible. In the last decade or so, T&N has tried to defend itself in court actions by arguing that it has always applied government safety regulations, that it has always adequately warned workers about the risks, that it has paid 'fair' compensation, and that it has supported medical research. Its archive shows such claims owe more to public relations than to fact. Turner & Newell provided significant opposition to the government dust control and medical schemes between the 1930s and 1960s; it neglected to implement such schemes fully in both the UK and especially overseas; it failed to warn customers; refused frequently to admit financial and moral liability for the consequences of its actions; often paid only token amounts of money for industrial injuries and deaths; tried to browbeat doctors, coroners, and the Medical Board; sought to suppress research linking asbestos and cancer; gave the government inaccurate data about disease amongst its shipyard workers; and disseminated imprecise information about the 'safety' of asbestos." The book (ISBN 0-19-829690-8), published by Oxford University Press, will be available in March, 2000 at a cost of £40.00. An order can be emailed to: firstname.lastname@example.org
A grant received in 1996 from the Wellcome Trust, the UK's foremost independent medical charity, made it possible for Tweedale to work on the subject of industrial asbestos disease for three years; this generosity is acknowledged in the book's second paragraph. The backing for an alternative view of the subject is not quite so clear cut. Dr Peter Bartrip has written 160,000 words, currently in search of a publisher, with T&N's "support." When questioned about this arrangement, Bartrip confirmed the company's financial "support" during a year's leave of absence from teaching. The grant was not administered by his college but was paid "directly" to him. As I have not seen the manuscript, it is not possible to comment on it. Nevertheless, examination of another paper by this author is illuminating. In Too little, too late? The Home Office and the Asbestos Industry Regulations, 1931 Bartrip portrays the asbestos industry in a positive light, asserting that the representatives of the asbestos firms "expressed willingness to render every possible assistance" during regulatory consultations with Factory Inspectors in the early 1930s. Nowhere in the seventeen page article does Bartrip mention any assistance, either monetary or practical, from T&N. It is only in a rebuttal to scathing comments by Dr Morris Greenberg and Professor Nick Wikeley that the corporate link is disclosed. A telephone enquiry to T&N's Manchester office on the nature and size of the company's assistance to Dr Bartrip was referred to Kimberley Welch, Vice President of Corporate Communications at Federal-Mogul (FM), now T&N's parent company on January 24. No response was received from her. Neither did she choose to clarify whether T&N had ever contributed to the British Lung Foundation (BLF), the "only UK charity specialising in the diagnosis, prevention and treatment of all lung diseases." Amongst the thirty major corporate supporters listed in the charity's Annual Review of 1997/98 was "T&N." A short statement by Darren Sanders, Publications and Communications Manager for the BLF, confirmed that his organization had in the past "received a relatively small amount of money from Turner and Newall. However, we no longer seek or receive money from this source and do not plan to do so in future." At the beginning of February, a spokesperson from T&N's UK head office corroborated the fact that donations had been made.
In many ways, T&N was a model for twenty-first century multinationals. Even before the 1920 amalgamation, T&N's forefathers thought internationally. In 1907 Turner Brothers Asbestos (TBA) registered a Canadian selling agency, the precursor to Atlas Asbestos. Ten years later, TBA directors joined the board of Rhodesia & General Asbestos Corporation as the UK company started buying up mines in Southern Rhodesia. In 1925, the new consortium acquired virtually all the shares of Ferodo Ltd., the leading UK manufacturer of brake linings and other friction materials. In 1931, Ferodo bought several textile concerns in north-west France and began production, becoming one of the main employers in the region. S. A. Valeo, the company which took over Ferodo's operations, was found guilty of "faute inexcusable" (inexcusable fault) in the case of Mr Alfonsi, a deceased Ferodo worker, on May 27, 1999 by the Appeal Court of Caen. The ruling notes that Ferodo's highly specialised business was inextricably linked to asbestos: "usage was not haphazard or occasional but continual and massive." The parent company is mentioned by name on pages 13 and 14 of the judgement including the comment that "the British company Turner and Newall (was) one of the biggest asbestos concerns..." Thousands of miles from the Normandy Court, the US District Court for the Eastern District of Texas, Marshall Division ordered the seizure of all stock owned by T&N, Ltd. including that for Ferodo Limited and 52 other companies in a case brought by Owens-Illinois, Inc. On August 24, 1999 a default judgment totalling $1,630,604,268.29 was entered against the Defendants for alleged participation "in a scheme to defraud and a conspiracy with other asbestos fiber suppliers to create and protect a demand for asbestos through the suppression and misrepresentation of information concerning health risks to users of finished insulation products containing asbestos." At a preliminary injunction hearing on December 20, 1999, a federal judge vacated the default judgment. T&N's motion to "permanently set aside the judgment" will be heard in February, 2000. Against potential liabilities such as these, one wonders if FM's directors are having second thoughts about their company's take-over of T&N plc. Two years ago, the spectre of asbestos claims didn't seem to bother the new owners. At that time, FM's General Counsel 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 promised that the take-over would "provide the resources required to match the provision set up in 1996 to meet past and future asbestos liabilities." They may well need those and more.
3. Will New Code of Practice Assist Asbestos Plaintiffs?
The protracted latency periods of asbestos-related diseases (on average, fifteen to forty years for mesothelioma, fifteen to thirty-five years for lung cancer and ten years or more for asbestosis), disadvantage potential claimants. By the time many claims are lodged, the employer responsible for the occupational exposure has long since disappeared. Even if the former employer is located, vital company documents such as employers' liability insurance policies are not readily accessible. There is no central register for insurance policies; the name of a company's insurer is not part of the information submitted in the annual accounts to the Registrar of Companies. It is pointless bringing a legal action if there is nobody to pay should the case succeed. Tracking down the employer's liability insurer for the relevant time can be a formidable task. Until now, specialist solicitors have followed a blunderbuss approach: contact everyone and anyone including solicitors, the Association of Personal Injury Lawyers (APIL), company liquidators, former personnel, accountants, insurance brokers, company directors, trade unions and victim support groups. This is a time-consuming, frustrating and, more importantly in today's climate, an expensive exercise. Two years ago, Environment Minister Alan Meale announced that the government intended: "to work with the insurance industry on drawing up a Code of Practice for handling claimants' queries on tracing insurers." On November 1, 1999 the Department of Environment, Transport and the Regions launched The Code of Practice for Tracing Employers' Liability Insurance Policies. The voluntary scheme, designed with the assistance of the Association of British Insurers (ABI) and the Non-Marine Association of Lloyds (NMA), is a strange hybrid. Identical enquiry procedures, tight time-scales, training and record-keeping requirements adopted by the ABI and NMA could prove beneficial to asbestos plaintiffs. Cause for concern over the degree of insurers' commitment is raised by the comment on page 2 of the Code: "The growth of the 'compensation culture' in the UK has had a huge impact on insurers." Frances McCarthy, vice president of APIL, was highly critical: "a voluntary code without really strong sanctions is simply not going to work, and almost certainly won't be efficient enough to deal with the predicted future increase in asbestos-related claims." No sanctions can be imposed for failure to comply with any of the new guidelines. Ian McFall, an asbestos claims specialist, believes that it is worth giving the scheme a chance: "Compared to the nightmare scenario we have faced when trying to identify employer's liability insurers in the past, any improvement would be welcomed. I am prepared to reserve judgment until I have observed first-hand the working of the scheme."
4. Post-ban Developments in the UK
Although UK prohibitions on the use of chrysotile were introduced after lengthy consultations with industry, unions, victim support groups and other interested parties, clarification of the intricacies and applications of the new regulations was required by a large number of friction and roofing material manufacturers, textile producers, power companies and Ministry of Defence (MOD) contractors. To address this need, the Health and Safety Executive (HSE) held a one-day seminar entitled: Asbestos (Prohibitions)(Amendment) Regulations 1999 at their Bootle offices on January 14. The subject of most interest to delegates was that of exemptions. HSE personnel were adamant: if a product can be made with a substitute, then, regardless of cost, a substitute must be used. Replying to manufacturers' complaints about being left with unsaleable stock, the HSE reiterated their position: "people knew it (the ban) was coming" and should have acted accordingly. There is no provision in law for compensation. There was much discussion about the one and three year derogations for compressed asbestos fiber gaskets and sheet. Recognising the widespread use of these products and the inconsistent evidence on available alternatives, the government accepted that more time was required to identify practical solutions. The special case of protective clothing for handling objects at high temperatures was acknowledged with a five year derogation for the production of gloves, arm guards and aprons.
The complexity and multiplicity of issues relating to asbestos and asbestos diseases transcend subject disciplines and government departmental boundaries: compensation for MOD personnel, benefits for industrial injuries, DSS bureaucracy, medical and epidemiological research, palliative care, management of asbestos in buildings, contaminated land and asbestos removal procedures to name but a few. A new forum has been established in the House of Commons to enable asbestos victims' representatives to communicate directly with Westminster politicians. MPs Michael Clapham and Peter Kilfoyle working with TUC personnel and members of the Liverpool and District Asbestos Victims Support Group and Clydeside Action on Asbestos have agreed to set up an asbestos sub-committee of the All Party Parliamentary Group on Occupational Safety and Health. Attendance at the inaugural meeting of this group to be held on March 16 is by invitation only.
5. News Round-up
Published in 1999, Effets sur la Sante des Fibres de Substitution a l'Amiante (Health Effects of Asbestos Substitutes) by INSERM compliments their 1997 publication: Effets sur la Sante des Principaux Types d'Exposition a l'Amiante (Health Effects of Asbestos).
Frequency of Occupational Asbestos Exposure Among Lung Cancer Patients in Hungary. A Preliminary Report by M Posgay, A Mandi et al concludes "that the majority of asbestos-related malignancies remain undetected, the incidence data are seriously underestimated in Hungary."
According to Guidelines for Mineral Fibre Analyses in Biological Samples: Report of the ERS Working Group by P DeVuyst, A Karjalainen et al: "A negative result is not proof of the absence of significant exposure, especially when chrysotile is concerned, but the exposure history should be evaluated carefully."
Dust measurements, X-ray examinations, lung function tests and tissue analyses were the basis for conclusions in Health and Exposure Surveillance of Siberian Asbestos Miners: A Joint Finnish-American-Russian Project by A Tossavainen, R Riala et al. Fifteen per cent of the long-term workers were found to have radiological abnormalities (parenchymal or pleural).
Multi-parameter Observation of Environmental Asbestos Pollution at the Institut De Physique Du Globe De Paris (Jussieu Campus, France) by P Besson, FX Lalanne et al states: "It is a fact that the presence of people leads to a higher mobilization of the particles in air ...The concentration of asbestos fibers during personnel working hours is therefore underestimated."
In An Expert System for the Evaluation of Historical Asbestos Exposure as Diagnostic Criterion in Asbestos-related Diseases co-authors A Burdorf and P Swuste develop a risk matrix and stepwise decision trees to "speed up the process of verifying compensation claims and... (aid) uniform decision-making process in legal procedures."
Decades of Deception: Secrets of Lead, Asbestos, and Tobacco by RL Motley and A McGinness Kearse discusses the "corporate misconduct" of three industries which "wove a web of secrecy, deception and propaganda, all for the sake of profits."
January 18, 2000: A public meeting, chaired by Terry Rooney MP, launched the Bradford Asbestos Victims Support Group to "provide free, independent and confidential advice and support to sufferers of asbestos-related diseases and their families." Coordinator Carol Duerden and her team can be reached at: 01274 393949.
March 29, 2000: A "Mesothelioma - Meeting the Challenge" study day will be held in Doncaster. Personnel from Respiratory Units in Trent and Yorkshire will be invited to hear presentations covering "aspects of diagnosis, surgery, treatment, palliative care, legal aspects and family support." Organizer Dr J Hill can be reached at the Sheffield Chest Clinic, tel: 0114 226 6432.
During the coming year, courses will be held at venues throughout the United Kingdom by a new company: Asbestos Awareness & Abatement (AAA). According to Company Director Carol Amery: "The wide diversity of subjects tackled -- from the introductory course for new removal operatives to the BIOH certified Management of Asbestos in Buildings -- is designed to help industry to meet the increasingly stringent training requirements imposed by national legislation." For more information, phone: 01277 632727; email: email@example.com
Compiled by Laurie Kazan-Allen