Asbestos Watch Newsletter
November/December 1988

Featured Articles:

Healthy Manville Immune From Suits
Who Says It's Safe?

Other Articles:

President's Letter
School Law Deferral Doesn't Lessen Responsibility
Organizing to Protect Children
New York WLA Re-organizing
Asbestos Companies' Strategies
Tremolite Asbestos Still Unregulated
White Lung Members Fight Corruption in Workers Comp
Homeless, Unemployed Exposed to Asbestos
Some Seek Extra Fees
Australian Asbestos Victims' Victory
I've Been Exposed. Can I Sue?
Legal Assistance Program Expanded
Model Bill Demonstrates Meaning of Just Compensation

Summaries in Spanish at the ends of most articles

As national president of the White Lung Association, it makes me very happy to announce that the consolidation of our national organization is almost complete. The WLA was organized in California in 1979 by and for asbestos victims, their families and the people that have or may have asbestos problems. We knew we needed to be organized all across the country and expanded in 1980 to Maryland and in 1981 to Alabama and New York. We have grown so much that we needed to change in order to work better together. So the national board began a re-organization in July of 1987.

We will now have all our chapters functioning under one national non-profit status. Our Asbestos Watch newsletter is coming out quarterly and we are standardizing our national programs. We will be able to expand White Lung Association chapters and programs to all areas of the country and do an even better job of educating asbestos victims, their families and the public about how to get justice for problems caused by asbestos and how not to become asbestos victims.

Millions of peoples' health and lives are destroyed by asbestos, just to make money. All the money in the world cannot bring back one person's health or one life once they are destroyed. There are still many people trying to take advantage of asbestos victims, using the victims and their families and even trying to use the White Lung Association, just to make money off of for their own benefit. They are people like the irresponsible corporate officials of the asbestos producers, some doctors, some lawyers, some organizations and some people that will take advantage of anyone, sick or not, to make money off of.

All people that have problems due to asbestos should join the White Lung Association for their benefit and to help make a stronger national victims' organization. We cannot fight this huge national problem as individuals or just as small groups of people. In unity there is strength to help each other.

The WLA needs and wants your help. To help the American children grow up healthy adults, not asbestos victims. To make America a safer place to live in. To make the environment clean so people and things grow. The White Lung Association stands for Justice Today for Better Health Tomorrow. Join us.

School Law Deferral Doesn't Lessen Schools' or Parents' Responsibility

"It is impossible to enforce the provisions of any such law if the workers themselves do not have the right to refuse unsafe work."

On July 18th President Reagan signed an amendment to the Asbestos Hazard Emergency Response Act (AHERA) extending the deadline for filing school asbestos inspection reports and management plans from October 12, 1988 until May 9th, 1989. Asbestos management plans must still be implemented by the original deadline of July 9,1989.

In order to get a deferral, schools had to explain to the state why they had not been able to meet the deadline, notify affected groups, discuss the deferral at a public school board meeting and propose a schedule for submitting the plan in May. They must have documentation at each school of certain steps they are taking to complete the process. If a school district does not have a deferral, there will be an inspection report and management plan on file in each school. (Connecticut, Rhode Island, Illinois and New Jersey have specific rules for their own states.)

All removal, encapsulation, enclosure or repair of asbestos in schools has to be designed and done by accredited persons with AHERA training. Abatement workers must have 3 days of training, including hands-on training. Persons doing maintenance work which disturbs asbestos must also be trained and are covered by worker protection standards for large--and small--scale jobs.

Through the Asbestos-in-Schools Coalition, the White Lung Association and school employee and parent organizations worked to try to keep the law from being further weakened by the deferral. Coalition activity did limit the maximum extension to May 9, 1989 but was unable to gain a provision for worker protections to include the right to refuse to do unsafe work. It is impossible to enforce the provisions of any such law if the workers themselves do not have the right to refuse unsafe work.

The recent changes, just like the weaknesses in the original law itself, means that vigilance will be necessary to prevent unsafe work and exposure. Parents, students and school employees should know what the law requires and what is necessary beyond the law's requirements to protect health. Contact the White Lung Association for more information.

Parents and employees are speaking and acting to protect their own and students' health. In Brevard County, Florida (see July 1988 Asbestos Watch), the school board voted 3-2 not to renew the contract of the school superintendent who had blocked parent efforts to have asbestos handled safely there. MacAteer High School in San Francisco (Summer '87 AW) remains closed and parents are still fighting to see that asbestos removal is completed quickly but safely. In Baltimore, Maryland, parents and the community pressured the city to spend $11 million to remove asbestos from Walbrook High School. Long Island, NY parents worked with the White Lung Association to educate themselves and continue to educate others. In November, NY State PTA will consider a resolution to call for school committees to oversee the implementation of AHERA asbestos management plans and a resolution to ban asbestos in playsand. The New Jersey WLA co-sponsored a state-wide conference on AHERA implementation with NJ state PTA teachers' unions and organizations representing custodial and maintenance employees. It was held on Saturday, November 19th at Rutgers University in New Brunswick.

New York WLA Reorganizing

The chapter status of the former New York Chapter of the White Lung Association has been revoked. This action was taken by the national board of directors reluctantly after efforts failed to establish communication with the chapter's board of directors in an attempt to resolve financial and management problems which threatened to disrupt the work and tarnish the reputation of the organization. We have requested that this group cease using the White Lung name in their activities.

WLA members in New York should send requests for information, inquiries and membership renewals to the national office. You may contact the NY Organizing Committee at (212) 714-3765 if you are interested in organizing or attending a WLA meeting. All White Lung Association training and technical programs are now under the direction of the national headquarters located in Baltimore.

The national board of directors looks forward to continued work with our New York members to educate the public about the dangers of asbestos and to make sure that asbestos victims are guaranteed their medical and legal rights. Join us in our nation-wide effort for justice today for better health tomorrow!

Asbestos Companies' Strategies Include Forced Class Action, "Fibrebucks", Bankruptcy

"Fibreboard is offering more money than Raymark's grid, but the money they are offering is not legal tender."

A July court decision to assign all asbestos personal injury claims against Raymark (formerly Raybestos) to a class action was overturned because the court said that all members of the proposed class, the victims, were not informed. Raymark is now arguing in court that it is too difficult to guarantee a person's constitutional right to be told that his right to sue is being taken away.

This "class action" strategy to pay off all its victims under one suit is just one of Raymark's ploys to keep from paying its victims what they deserve. The other is the Raymark "grid", a plan which gives victims the choice of little or nothing or going to court. (The "grid" offers $1100 for a mesothelioma, for example.) Raymark apparently hopes that the victims who have already settled with other companies will take the small sum rather than bother to go through a court trial for additional Raymark money. Celotex has also bought into this "odd man out" strategy.

Fibreboard is offering more money than Raymark's grid, but the money they are offering is not legal tender. They are offering a piece of paper saying the company will pay a certain sum of money in FIVE years if they can afford it. In other words, your choice is "fibrebucks" or no bucks at all, because Fibreboard is threatening bankruptcy if their scheme doesn't work.

The Wellington Group has been dissolved under the burden of too many cases and cases from new and different sources of exposure. The new claims facility being proposed will be trying to settle more cases out of court, but this will require victims and their lawyers to settle "in a reasonable and rational manner," according to the acting CEO of the facility. Translated from corporate-eze, this will certainly mean "for less."

Manville, Unarco, Amatex, Nicolet and 48 Insulations have already declared bankruptcy. Raymark, Celotex and Fibreboard are threatening this option. In a situation like this, asbestos victims and future victims must look beyond the immediate settlements to long-range solutions. Society must come up with some real and viable solutions for the death and destruction that these companies have caused and will continue to cause in upcoming decades. We must be informed and organized to speak out as asbestos victims in order to accomplish this. JOIN THE WHITE LUNG ASSOCIATION TODAY!

Tremolite Asbestos Still Unregulated
Contaminated Playsand In Use

"Individuals in NIOSH have been disciplined...because they 'unwittingly just got a little too cozy with a particular industry' (RTV)."

Under mining industry pressure, the Occupational Safety and Health Administration (OSHA) has extended for one year their ruling that the OSHA asbestos standard does not apply to tremolite asbestos. Tremolite is found in talc and its by-products, such as children's playsand. (See article in July/August 1988 Asbestos Watch.) White Lung Association members, consumer protection groups and some legislators are trying to get OSHA and the Consumer Product Safety Commission (CPSC) to regulate tremolite like any other asbestos and ban its use in playsand.

The talc mining industry's efforts to put pressure on government officials, is being led by RT Vanderbilt Company. Robert Strauss, former head of the Democratic National Committee, is a partner in the Washington law firm which represents RTV. Studies by the National Institute for Occupational Safety and Health (NIOSH), which produces risk assessment information necessary for regulation, have been compromised by mining interests. Individuals in NIOSH have been disciplined by director J. Donald Millar because they "unwittingly just got a little too cozy with a particular industry" (RTV). The fact that no "overt conflict of interest" was established will be a moot point after agency personnel have gone on to lucrative jobs for the corporations.

Asbestos Watch urges its readers to contact OSHA, NIOSH and the CPSC about this issue. Directors of the agencies are: John Pendergrass, Asst. Sec. OSHA, 200 Constitution Ave., NW, Washington, DC 20210, (202) 523-7162; Dr. J. Donald Millar, NIOSH, 1600 Clifton Rd. NE, Atlanta, GA 30333, (404) 639-3771; Terrance Scanlon, Ex. Dir. CPSC, 5401 Westbard Ave., Rm. 400, Bethesda, MD 20207, (301) 492-6550.

"Zupan did not spend these 13 years waiting patiently. Although severely disabled, he tried to bring perjury charges against those who had lied to deny him his benefits."

In the sixties, shoe boxes full of cash were discovered in the closet of the late Illinois Secretary of State. Southern Illinois' long reputation for government/industry corruption continues to this day. Harry Brandt, vice-president of the national WLA and president of the Illinois chapter, has been working for the last three years to expose some of this corruption in the steel industry and legal representation in asbestos cases.

In the last Asbestos Watch we reported about White Lung member Paul Zupan who was denied workers compensation after a hearing which Zupan says he never attended. Zupan did not find out about the hearing until 1986, when he changed lawyers and finally saw his own files.

Zupan's employer Granite City Steel, the Illinois Industrial Commission (IIC) and the attorneys involved must have felt it was necessary to cover their tracks, says Zupan, because they had a company official take the unusual step of signing an affidavit stating he was present at this "hearing."

At a 1980 comp hearing at which Zupan was present, his supervisor and a supplier to the company both testified that there was no asbestos used at Granite City Steel while Zupan worked there. Zupan says he and other former employees will tell you just the opposite. But compensation was denied him.

Why was it so important for Granite City Steel to have this claim denied? Zupan thinks that it is because, at the time he filed in 1973, an injured worker could collect both workers comp and his pension under the United Steelworkers' contract. This right was surrendered in the 1974 contract.

Zupan took his case to court and in 1985 the circuit court ruled that his asbestosis was a compensatable disease under state comp law. Granite City Steel appealed the decision, but the appellate court ruled for Zupan in 1986. He began to receive his comp benefits, but Zupan says his monthly check looked exactly the same because his benefits were deducted from his pension.

Zupan did not spend these 13 years waiting patiently. Although severely disabled, he tried to bring perjury charges against those who had tied to deny him his benefits. He says he was led on what he calls a "wild goose chase" by his own and state lawyers and the courts. Why? At a WLA demonstration about the case in October a comment made by a lawyer sums up what Zupan feels was their attitude: "Isn't that guy dead yet? "

Thousands of people fighting battles like Zupan's all over the country need an organization like the White Lung Association to help fight their way through the bureaucratic mazes and make the law work for society's victims. For example, there is a law (Misprision of a Felony) which makes it a crime to know about the commission of a felony and to conceal it, or not to notify authorities. Victims won't ever get justice until this kind of a law applies to all the attorneys, judges, state police and state officials who know about what is happening and won't do anything about it.

If you are an attorney, a legal professional or a victim familiar with this law or other cases such as Mr. Zupan's, please write to the Illinois WLA chapter with your opinion. Look for more on WLA members struggles for compensation and WLA chapter activities in upcoming issues.

Homeless, Unemployed Exposed to Asbestos Dangers

Headlines of asbestos horror stories are being repeated around the country. Asbestos removal companies are recruiting workers from homeless shelters, prisons and temporary agencies. Homeless workers have been used to remove asbestos with no safety training or medical exams and have been sent into contaminated areas without protection. Untrained temporary workers are being given false asbestos certification cards for daily work in asbestos removal. Prisoners are working at asbestos removal for a pay scale ranging from as low as $1.50 to $3.75 an hour. Workers who do not speak English are given training in a language they do not understand and lured into deadly work by promises of higher than minimum wages.

Unscrupulous asbestos companies are trying to suck every last dollar out of an asbestos market that is growing toward trillion dollar figures. They are using the most desperate and defenseless workers in the society to turn what should be a public health industry into an industry of death, for both these workers and for those exposed to the resulting contamination.

Trained workers who have found relatively safe work at high wages with quality asbestos contractors will find it harder to demand the safety precautions they need, because someone else will do the work without them. They will be unable to keep pay at a living wage, because someone else will do it cheaper. High quality companies will be less able to compete, because downtrodden workers without protection and support make unsafe "low bids" possible.

We urge all our members and every worker who is potentially exposed to asbestos on the job to stand up and defend the homeless, the jobless and the incarcerated. These are your brothers and sisters--and what happens to them will sooner or later happen to you. We must stop the next tidal wave of asbestos victims now, while we still can.

Asbestos victims and other disabled workers are no strangers to the desperation of unemployment and homelessness. Most occupational disease victims never receive any compensation and have to be supported by shrinking public programs. Former shipyard workers, carpenters and other asbestos victims are among those who are losing their homes. We will be writing more about this alarming and tragic situation in upcoming issues of Asbestos Watch.

Some Seek Extra Fees

The Manville Health Claimants Committee made up of lawyers who represent asbestos victims will be dissolved when the Manville bankruptcy plan is finalized. The Bankruptcy court will still have jurisdiction over the plan and a committee of three lawyers will act as liaison between the victims' lawyers and the Trust.

The lawyers who served on the Health Claimants Committee did so on a voluntary basis. But now the lawyer who volunteered to head the committee has recently announced that he will petition the court to be paid for his 6 years of volunteer work. (He, like all the lawyers, will retain a one-third or more fee from all the cases he settles against Manville.) Another lawyer, who was paid by the Health Claimants Committee to represent the committee itself is asking for a "premium payment for excellent work" in addition to his agreed upon fee. It isn't clear whether these extra fees would be paid by the Trust or by Manville.

If the Trust pays, this would be robbing the victims. If Manville pays, every victim in the country will have the right to ask him or herself who these "victim advocates" were working for for the past six years. The WLA finds these developments disturbing and we're sure many asbestos victims' attorneys do, too. What do you and your lawyer think?

Australian Asbestos Victims' Victory Holds Lesson For Others

"After the activity of the Asbestos Diseases Society stirred public consciousness of the lack of justice for the miners, their cause was taken up by their unions."

Wittenoom, in the vast state of Western Australia, is an asbestos-covered ghost town today. Workers brought over from a Europe devastated by World War II mined the asbestos there from 1943-1977. The oppressive dust, the heat and high turnover led to the exposure of over 6,000 workers and their families who were never told of the danger.

Asbestos victims, through their organization, the Asbestos Diseases Society, struggled for years to get someone to take their cases to trial. One by one they died, unrepresented, because of the close economic ties between lawyers in the western states and the mining interests. When the first case finally came to trial in 1979, no final judgment was rendered because the victim died on the day before her appeal was to be heard. (Under Australian law, the value and court priority of a suit declines greatly if the plaintiff dies before the judgment)

After almost ten years, suits have now been filed against the defunct mining companies and their parent company, CSR, the tenth largest corporation in Australia. In August, after an exhaustive eight-month trial, a judge ruled that CSR was negligent and is liable for damages to mine employees. This is a major victory because, in Australia, workman's comp is not a worker's exclusive remedy if negligence can be proven and, in Western Australia, once the case of negligence is proven against a company, it cannot be relitigated. (In the US, by contrast, suits for employer negligence are only allowed in very narrow circumstances, which are hard to prove. Each victim also has to establish the company's negligence again in each new case, even though it has been proven before.)

After the activity of the Asbestos Diseases Society stirred public consciousness of the lack of justice for the miners, their cause was taken up by their unions. Due mainly to the struggle and awareness of the organized asbestos victims, asbestos is hardly used anymore in Australian manufacturing. But, as in the US, asbestos used in decades past will continue to pose serious hazards to workers and others as it deteriorates.

Pressure is growing to take away the legal and occupational health rights won by Australian workers, 55% of whom are in unions. Australian businessmen maintain that they are at a disadvantage on the international market because Australian workers have more rights than workers in other countries.

In eastern Australia, where miners were aborigines, little has yet been done to document exposure or compensate victims. Without justice for these workers and asbestos victims in other countries, the Australian asbestos victims' victory, though significant, can only be a limited one. The White Lung applauds the work of the Australian Asbestos Diseases Society and pledges our continued support to asbestos victims around the world.

Legal Column

I've Been Exposed. Can I Sue?
by Ron Simon

QUESTION: I am a secretary and renovation was done in my area. We asked questions about all the dust and were told it was harmless. Finally, we got disgusted and had an outside expert come in and he told us the powder contained 40% asbestos. I know from your literature that I have an increased risk of cancer from the exposure even though I am not sick now. Can I sue the people who caused me this risk?

ANSWER: You should never have been exposed to asbestos. Unfortunately, people continue to be exposed to asbestos and the people responsible get away with it because the health effects of asbestos usually do not occur until at least ten years after exposure.

Successful asbestos lawsuits and recoveries have been made on behalf of people who are suffering from asbestos disease. In the past these lawsuits have almost always been against the manufacturers of the asbestos. Your remedy against your employer is a workers compensation claim. With the recent wave of unregulated asbestos removal and abatement, we can expect a wave of asbestos disease in the next 20-40 years. Lawsuits against the people who did the abatement and the property owners are already coming to court. For future reference you should carefully document your present exposure and the persons responsible.

A number of lawsuits have been pursued on the grounds of the increased risk, but these have generally not been successful. The courts have generally said that you cannot sue until you have an injury, and exposure itself is not an injury. The very few successful cases of this type have been brought by people exposed to contaminated drinking water.

Some innovative lawsuits have been filed to seek the costs of medical monitoring and force the people who caused the exposure to pay for medical exams. Persons with exposure and any lung abnormalities or symptoms should be examined once a year. So should people who were exposed 10 or more years ago. Exams every other year are appropriate for persons exposed more than five years ago.

Ron Simon is a practicing attorney in Washington, DC who handles many cases involving toxic exposure. He is also the corporate counsel for the Citizens' Clearing house on Hazardous Wastes and the White Lung Association.

Legal Assistance Program Expanded, Will Benefit Victims, Legal Counsel

"A most recent example of this trend to deny victims' rights is the attacks that are being mounted on the contingency fee."

The White Lung Association's Legal Assistance Program was first formally introduced in a speech by President Paul Safchuck at the Asbestos Litigation Seminar in Monterrey, California last May. The program's purposes are to expand White Lung's efforts to:

• Help victims understand their legal rights

• Help victims understand the various compensation systems, the court system and the value of representation

• Promote more support for legal representation through a better understanding of asbestos cases and the problems that lawyers encounter

• Help victims safeguard their rights by supporting the tort system and opposing limitations such as caps on compensation and restrictions on the contingency fee system

With chapters and members across the country, the WLA's Legal Assistance Program will be a type of clearing house or national information center for asbestos victims with legal cases. The program will help victims better understand the tort and workers compensation systems and will also provide lawyers with added insight into the needs of the victims.

An important part of our activity will be to keep lawyers and victims informed about problems that are being developed by the asbestos producers, their insurance companies and their lawyers which cause hardships to asbestos victims and their families. We have always actively educated our members and the public about issues which hurt asbestos victims and help the polluters, such as caps on damages and limitations on joint and several liability. A most recent example of this trend to deny victims' rights is the attacks that are being mounted on the contingency fee. The insurance companies are trying to deny victims equal access to legal counsel by taking away the economic incentive for a lawyer to take a case and fight for just compensation. In England, where there is no contingency fee system, victims must often put up large sums of money to begin a case.

Attacks on asbestos victims' rights are growing. Asbestos victims need this expanded program now as never before. How effective it will be depends on help and financial assistance from the legal community and WLA membership support.

What can you do to help? We are asking every WLA member with a legal case to talk to your lawyer about the program. Make sure that your lawyer has received an announcement of the program and let the WLA national office or your local chapter know if they have not. Ask your lawyer if he is participating in and contributing to the program. Urge him or her to do so. Look for announcements of program participants in upcoming issues of Asbestos Watch.

THE POSSIBILITIES ARE LIMITED ONLY BY THE LIMITS IN OUR DREAMS AND COMMITMENT.

Model Bill Demonstrates Meaning of Just Compensation

"Written by and for disabled workers, the bill would set up an independent corporation to run the program and put a majority of disabled workers on the governing board. This would take the power out of the hands of the politicians and agency bureaucrats who bend to industry pressure."

A model law to guarantee just compensation to all occupational disease victims, paid by the employers who make or use toxic substances, has been completed by the Black, Brown and White Lung Associations. These groups, representing disabled victims of coal dust, cotton dust and asbestos, work together in the Breath of Life Organizing Campaign (BLOC) coalition. The model legislation, the Toxic Substances Disease Compensation and Prevention Act, will be used to educate the public that job related disease is an unacceptable violation of human rights and that those who profit from the destruction of health must compensate their victims.

Written by and for disabled workers, the bill would set up an independent corporation to run the program and put a majority of disabled workers on the governing board. This would take the power out of the hands of the politicians and agency bureaucrats who bend to industry pressure. A medical panel would make a list of all work-related toxic substances and it would be presumed that your work caused your disease if you were exposed to one or more of these substances while working.

The system would be non-adversarial. Medical standards would be fair and geared toward preventing exposure. Once you prove to the hearing officer you are disabled, it should end there. No more years of court battles that delay victims to death. Provisions of the law will encourage corporations that cause disease to use their resources to prevent future disease rather than to fight claims.

Total disability would mean that you could no longer do the most strenuous type of work you had to do when exposed. Partial disability would mean you have an occupational disease that could progress to total disability with more exposure. A disabled worker would have to stop working with toxic substances to receive benefits once they were approved, but could find lighter work in a non-toxic situation.

There would be no time limit for filing and workers could submit evidence at any time during their claim. In stead of "lump sum" payments, there would be continuing benefits. Partially disabled workers would receive 60% of the total disability benefit and there are also provisions for medical and survivor's benefits.

BLOC's newsletter, The People's Respirator tells more about the model law. Copies of the newsletter and the law are available from the WLA. (Donations to cover printing and mailing costs are appreciated.) Look for more information about activity to publicize this effort in upcoming issues.