British Asbestos Newsletter
BRITISH ASBESTOS NEWSLETTER
9 Tintagel Drive, Stanmore, Middx. HA7 4SR England
Issue 36: Autumn 1999
United Kingdom Bans Chrysotile
The asbestos century is over. One month after the European Union (EU)
banned chrysotile, the UK followed suit. The Asbestos (Prohibitions) (Amendment)
Regulations 1999, signed on August 24 by Deputy Prime Minister Prescott,
come into force on November 24, 1999 five years ahead of the European
deadline. Chrysotile had been the only type of asbestos permitted in the
UK since amosite and crocidolite were banned in 1985. Statutory Instrument
No. 2373 forbids the import of crude fiber, flake, powder or waste chrysotile
and the new use of asbestos cement, boards, panels, tiles and other products.
Chrysotile-containing products installed prior to November 24, 1999 can
remain in place until they reach the end of their service life. The sale
of second-hand asbestos cement products and building materials covered
with asbestos- containing coatings is forbidden. Two pages of time-limited
derogations apply to specialist items such as diaphragms in electrolytic
cells in existing electrolysis plants for chloralkali manufacture, and
split face seals of at least 150 millimetres in diameter used to prevent
leakage of water from hydro-electric power generation turbines... The
residual problem of brake linings was dealt with in a complementary piece
of national legislation that implemented European Commission Directive
98/12/EC. Laid under the Consumer Protection Act, the Road Vehicles (Brake
Linings Safety) Regulations 1999 prohibit the supply, exposure for supply
or fitting to a motor vehicle or trailer of brake linings containing asbestos
as of October 1, 1999.
While the governments decision on chrysotile was anticipated, its arrival
during the dog days of the Summer parliamentary recess was surprising.
Perhaps Ministers believed vacationing representatives of the asbestos
industry and producer governments would remain unaware of the new legislation.
The low-key announcement was understandable in light of the industry's
increasingly desperate attempts to counter growing anti-asbestos sentiment.
Diplomatic threats and sabre-rattling had delayed UK legislation for two
years. When Labour first came to power, Prime Minister Blair expressed
his determination to deal effectively with the problems of asbestos. Environment
Minister Angela Eagle told the House of Commons that a mechanism for introducing
a domestic ban on the import, supply and use of asbestos was being investigated.
In the weeks and months that followed, it became clear that more cautionary
counsels had prevailed. A year after her first statement, Eagle commented:
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. The reason for the deceleration was simple: on May 28, 1998
the Government of Canada lodged a request with the World Trade Organization
(WTO) for consultations with the European Commission concerning certain
measures taken by France for the prohibition of asbestos and products
containing asbestos. Should the UK follow the French lead, it might well
receive similar attention.
A decision was taken to adopt a more circuitous strategy: a UK ban would
be pursued under the protective cover of European mobilization. Health
and Safety Executive (HSE) personnel worked closely with their counterparts
at Directorate General (DG) III of the European Commission. In 1997, a
senior HSE official had been seconded to DGIII to work on the draft legislation.
In response to an EU appeal for information, the HSE commissioned a report
entitled Chrysotile and Its Substitutes: A Critical Evaluation for submission
to the Scientific Committee on Toxicity, Ecotoxicity and the Environment.
From recent statements by government spokesmen, the importance of the
HSE's input into the consultation and decision-making process is clear.
Sir Frank Davies, Chairman of the Health and Safety Commission, said:
We have worked long and hard to secure a ban for the good of Europe as
a whole, taking a leading role in helping to establish a solid scientific
foundation for it. John Prescott believes that the UK played a leading
role in securing sound science around the safety of alternatives, without
which there most probably would have been no ban.
The timing of the ban is of interest vis-a-vis the ongoing WTO case.
According to the EU: The new directive does not in itself have any legal
impact on this particular case. However, it introduces a measure which
is very similar to the French ban, thereby confirming support for France
at Community level. The scientific justification for the Directive is
also based on the justification given by France for its national measures.
The machinations of the WTO remain shrouded in secrecy. The ruling, originally
expected in early December, will be delayed until March, 2000 according
to an article for the Bureau of National Affairs. Although no reason was
given, informed observers believe that the original timetable has been
derailed by the need to commission independent scientific advice. Should
the unthinkable happen and Canada win its case, chrysotile prohibitions
in ten EU countries could be in jeopardy. The member states which still
permit the use of chrysotile - Spain, Portugal, Greece, Ireland and Luxembourg
- have been urged by Deputy Prime Minister Prescott to act swiftly to
implement the Directive, so that all forms of asbestos will be banned
in Europe as soon as possible.
The clandestine workings of the WTO have attracted condemnation from
environmental, consumer and citizen groups world-wide. According to Barry
Coates, Director of the World Development Movement, over the last four
years the WTO has overturned laws to protect turtles and dolphins, banned
the EU's support for banana farmers in the Caribbean, undermined restrictions
on the use of leg traps in the fur trade and overruled the EU's ban on
imports of beef injected with growth hormones in the name of trade liberalization.
On November 30, Ministers from the WTO's member nations meet in Seattle
for four days of talks. Trade issues involving agriculture, services and
intellectual property rights are on the agenda; the decisions made could
dramatically affect sectors as diverse as farming, energy, education,
health-care, tourism, teaching, medicine and entertainment in each of
the 135 signatory countries. The unresolved case of Canadian chrysotile
is bound to cast a spectre over the economic free-for-all. Barry Castleman,
international asbestos specialist, believes that the Canadian complaint
has far-reaching implications: We are dealing here with the leading known
cause of occupational cancer in human populations all over the world,
one of the most thoroughly studied toxic substances. If there isn't enough
evidence to ban the use of asbestos (mainly used in building panels and
pipes and vehicle brakes, hazardous uses where safer substitutes are available),
what can be banned?
2. British Justice
In his seventy-two years, Cupido Adams has seen his wife, parents and
brothers die. Like one in seven people from his home-town of Prieska,
they had asbestosis. The fact that he is ill comes as no surprise to Mr.
Adams; he remembers all too clearly working with the deadly dust all day
and everyday. In the absence of protective gloves, he handled and sorted
asbestos with his bare hands: The dust was everywhere. It lay up to an
inch thick. There were no warnings, nothing. Children played in it. I
lived half a kilometre from the factory but in order to drink I had to
scrape a layer of asbestos off the top of my water jug. Mining, milling
and manufacturing operations in three South African provinces belonged
to UK asbestos giant Cape Asbestos Co. Ltd. and its subsidiaries.
Incorporated in 1893: to purchase, take on lease, hire or otherwise
acquire any asbestos or other mines, quarries, workings, rocks...containing
or supposed to contain asbestos or other minerals in South Africa, Canada,
Italy or elsewhere, the company spent eighty-six years doing just that.
In 1979, Cape sold up and left its former workers to fend for themselves.
No settlement was made, no trust set up, no medical scheme put in place.
To our knowledge, Cape has not paid one rand in compensation to any of
its South African workers; nor has it contributed to government efforts
to decontaminate asbestos dumps, industrial sites and derelict mines in
the Northern Cape, the Northern Province and Gauteng. The company refuses
to discuss its South African obligations; phone calls to the Uxbridge
headquarters resulted in a no comment from Company Secretary Stephen Smith.
Mr. Adams was in London last Summer to talk about a landmark case which
has been three years working its way through the English judicial system.
The claimants are South African asbestos victims; the defendant is Cape
plc, a multinational conglomerate with an annual turnover of £238.6
million and net assets of £53.6 million. From the start, the plaintiffs
faced almost insurmountable hurdles including jurisdictional problems
and evidentiary difficulties. Solicitors at Leigh Day & Co., the London
firm representing most of the plaintiffs, maintained that the legal action
should be brought in England, the country in which Cape is incorporated
and domiciled. The defendants solicitors argued strenuously that South
Africa was the appropriate forum. On appeal, the five plaintiffs won the
right to sue in England. On December 16, 1998, the House of Lords confirmed
that the cases of Rachel Lubbe et al could proceed. One month later, writs
alleging occupational or environmental exposure were issued on behalf
of Hendrik Afrika, Cupido Adams and 1,537 others. The increase in numbers
was the basis for another defense application to stay proceedings so that
the claims could be returned to South Africa as a group action. This manoeuvre
succeeded. On July 30, 1999, Mr. Justice Buckley found: The operation
of asbestos mines and mills in South Africa appears to have caused wide-spread
injury, suffering and death over many years. An enquiry into the circumstances
including, local standards, conditions, regulations and state of knowledge
of the parties and, if appropriate, assessment of damages to compensate
the South African victims are overwhelmingly matters in which the South
African jurisdiction has far greater interests. Politicians and campaigners
denounced the verdict. Ben Jackson of Action for Southern Africa urged
that: Cape and other British companies that profited from the apartheid
system cannot be allowed to walk away from their responsibility. In a
letter to The Independent, Labour MPs and MEPs criticized a legal system
which is failing to deliver justice to people overseas who have suffered
through the negligence of British companies. When the Court of Appeal
upheld Buckley's decision, plaintiffs Solicitor Richard Meeran responded:
To deny our clients the opportunity of facing Cape in a UK court is the
same as denying them justice. The likelihood that a class action will
be brought in South Africa is remote. Undoubtedly, an appeal to the House
of Lords will be made.
The situation in which Capes former workers find themselves is a far
cry from that promised during the company's heyday. In 1953, a publication
issued on the occasion of Capes Diamond Jubilee predicted a glowing future
for its workforce: Capes achievement is no more and no less than the total
contribution of every member of the Company over these sixty years...
recognising this fact (we) have seen to it that the first to benefit from
prosperity, when it came, were the employees in mine and factory, laboratory
and office, at home and abroad. The text stressed the magnificent work
done by the men and women in our mining establishments. Half a century
later, these men and women are struggling to obtain a fraction of the
compensation their UK counterparts have received. They are, unfortunately,
not alone in their disappointment. A product liability lawsuit brought
by American workers failed in 1988 because English courts refused to enforce
a $15.6 million default judgement issued by a United States District Court
in Tyler, Texas. Cape Industries plc, the UK parent company, contested
the courts jurisdiction and did not appear in the proceedings. According
to a Law Report of June 21, 1988: Cape had no assets in the USA and so
was prepared to allow default judgments to be obtained. In addition, NAAC
(Capes marketing subsidiary for the USA) was put into liquidation. Alternative
marketing arrangements were implemented with a Liechtenstein corporation
selling asbestos in the USA, through an agent, a new Illinois corporation,
Continental Productions Corporation (CPC). Once again a jurisdictional
defense mounted by Cape succeeded; Jimmy Wayne Adams, the lead plaintiff,
and 200 plus claimants left the Court of Appeal empty-handed.
There is an important difference between the US and South African cases.
In the earlier case, Cape refused to submit to a foreign courts jurisdiction;
in the later it has agreed to submit to the jurisdiction of the South
African court in respect of the claims. This decision could prove very
costly. South African environmental policy is based upon the concept of
the polluter pays. In September, a parliamentary environment committee
was told that where the original polluter could not be traced, the government
was responsible for decontamination costs.
Until now, the financial burden of the asbestos clean-up has meant that
only the most rudimentary steps in the worst affected areas could be taken.
A review of techniques such as covering exposed asbestos with topsoil,
planting trees and shrubs and fencing designated sites is being undertaken
by the Department of Environmental Affairs (DEA). Now that Cape has volunteered
to be sued in South Africa, perhaps its a good time for the DEA to think
big. Sophisticated systems and state of the art equipment are surely not
beyond the pockets of a company whose success derived from the life blood
which flows from our Blue and Amosite mines. A company which believed
that the future will enable us to continue to pay the highest regard for
human values would gladly do the right thing - wouldn't it?
3. Asbestos Not Tobacco Caused Cancer
Two years after his death, a ruling by the Court of Sessions in Edinburgh
vindicated the efforts of William Smiths family to gain recognition and
compensation for his asbestos-related illness. A plaintiffs verdict by
Lord Bonomy awarded damages totaling £97,100 against Upper Clyde
Shipbuilders (UCS), successors to John Brown Shipbuilders Ltd., Smiths
former employers. This case was complicated by several factors: disputed
medical evidence, the lack of a post-mortem and the decedents history
of heavy smoking. During the 1960s, Smith worked for five years as a coppersmiths
assistant; UCS agreed that asbestos exposure could have occurred during
this time. The company asserted however that Mr. Smiths death at age 54
was due to adenocarcinoma, a type of lung cancer, not mesothelioma; defence
experts believed that the lung cancer had been caused by the patients
lifelong smoking habit. Although the procurator-fiscal had been informed
of Mr. Smiths death, no post-mortem was conducted as mesothelioma had
already been diagnosed. The judge regretted this oversight saying: A post-mortem
would probably have been conclusive... it would be of assistance in any
case where mesothelioma is suspected if fiscals were to advise relatives
that a post-mortem would be appropriate if a firm diagnosis was likely
to be required for any purpose. Knowing that his patient was a heavy smoker,
Dr. John MacDonald, a consultant physician at Crosshouse Hospital in Kilmarnock,
initially suspected lung cancer, a disease which, like mesothelioma, is
characterized by breathlessness and chest pain. CT scans, however, revealed
the classic features of mesothelioma. This diagnosis was supported by
evidence from Dr. James Kerr, consultant physician from Glasgow's Western
Infirmary, and consultant radiologist Dr. Brian Moule. The Judge concluded
that asbestos not tobacco had caused the fatal cancer.
4. Asbestos Prosecutions
Environment Agency (EA) and Health and Safety Executive (HSE) prosecutions
relating to asbestos cement products, chrysotile tiles and risk assessments
continue to draw attention to unacceptable practices throughout the country.
A recent case before Welsh Magistrates highlighted the need for anyone
using recycled building waste in construction projects to make absolutely
sure that the wastes are uncontaminated and suitable for the purpose.
Bridgend farmer David Williams was fined £3,000 plus £1,469
costs after pleading guilty to waste offences including one of tipping
asbestos after an inspection revealed that asbestos-containing rubble
had been used in the maintenance of road surfaces on his farm. Asbestos
cement debris in unsealed bags and scattered around a yard belonging to
a Devon building contractor cost the Exeter firm of WH Tolley and Son
£7,000 last Summer when three charges of storing asbestos waste on
unlicensed land were admitted. In October, magistrates at Arundel Court
fined a new company £5,000 for infringements which occurred two years
ago before the current owners took over. Improper storage of asbestos
waste and the presence of uncovered sheet asbestos were found during a
site visit by EA officers.
Despite a change of ownership and management, the EA persisted in the
court case for two reasons: Firstly to send a clear message to the public
that we will not hesitate to investigate and prosecute any abuse of the
legislation governing the disposal of waste. Secondly, the directors at
the time of the offences now have the stigma of these convictions, This
means that if at any time in the future they wish to become involved in
the waste industry, these offences will be taken into account when they
apply for the necessary licences to operate. The same month, Graham Law,
a Sheffield builder, was fined £4,800 for offences under the Environmental
Protection Act 1990. Sheffield Magistrates were told that Law had illegally
buried chrysotile roofing tiles at a house in Nelson Road, Stannington.
Unsafe working conditions and administrative oversights were pivotal
to convictions obtained by the HSE last Summer in England and Scotland.
Green Contract Services admitted breaching health and safety guidelines
during the removal of asbestos from the council-run Frances Withers Home
in Sutton Coldfield. The HSE prosecutor told Birmingham Magistrates Court:
None of the precautions you would have expected to see actually took place.
People were ripping out asbestos with claw hammers, and workers were changing
in the car park at the site instead of a proper decontamination unit.
The company was fined £15,000 with £830 costs.
In Falkirk, Scotland, the Sheriffs Court heard how fourteen employees
of Cameron Furnace Ltd., a Rutherglen contractor, had been exposed to
asbestos while working at BP Chemicals G4 Plant in Grangemouth. The men
had been stripping and relining a 1960s waste boiler during a routine
shutdown. The boilers calcium silicate cladding contained asbestos fibers
which were liberated during the removal of the refractory material. According
to the prosecution: The dust was a quarter of an inch thick and while
employees had protective clothing, they did not have enough and even had
tea breaks while wearing these and even took some of the dust home.
Procurator fiscal Caroline Dickson believed that: With the age of the
boilers it should have been known that there was a danger of asbestos
in the lining: a risk assessment should have been carried out. In defense,
BP's solicitor said: The whole operation to remove the cladding had been
carefully planned but it wasn't known that the material contained asbestos
particles. Sheriff Andrew Murphy was dismissive: It seems to me BP has
the resources and shouldn't have failed to identify the possibility of
the substance. BP received a £5,000 fine, the maximum penalty permitted
by law; the contractors were fined £1000 for the unlicensed removal
of asbestos insulation.
5. News Roundup
- Asbestos Exposure and Dust Control is the 20th volume in the authoritative
textbook series: Sourcebook on Asbestos Diseases. Working through some
of the most tragic documents in British industrial history, G Tweedale,
author of the chapter entitled Sprayed Limpet Asbestos: Technical, Commercial
and Regulatory Aspects, demonstrates the failure of Turner & Newall between
the 1940s and 1970s to warn workers adequately and enforce even the most
basic safety standards. He continues: Perhaps the saddest aspect of the
SLA (Sprayed Limpet Asbestos) tragedy was that satisfactory substitutes
were available even before asbestos was commercialised in the 1880s.
- In Ecological Relationship between Mesothelioma Incidence/Mortality
and Asbestos Consumption in Ten Western Countries and Japan K Takahashi
et al find that: Among the ten Western countries, a clear linear relationship
was shown between the mesothelioma incidence/mortality rate and the preceding
per capita asbestos consumption.
- A Study of Lung Cancer Mortality in Asbestos Workers: Doll, 1955 by
M Greenberg looks at the circumstances and results of Dr. Richard Dolls
research into lung cancer mortality among workers for Turner Brothers
Asbestos: Despite the limitations of the data, Doll convincingly demonstrated
so substantial an excess of lung-cancer in heavily exposed long-term asbestos
workers as to overcome honest doubt. The publication of these findings
produced so profound a lack of sense of urgency, that legislation to tackle
the cancer problem was not passed until 1976.
In the absence of the political will to safeguard occupational health,
asbestos-related deaths were an acceptable price to pay for a robust export
industry.
- Comparative Hazards of Chrysotile Asbestos and Its Substitutes: A
European Perspective by PTC Harrison et al 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.
- This Autumn, the subject of asbestos was discussed at a series of
annual conferences including those of The International Mesothelioma Research
Group, The International Association of Cancer Registries, The European
Respiratory Society and The International Symposium on Particle Toxicology.
At the last meeting, David Bernstein told a sceptical audience that pure
chrysotile is rapidly cleared from the lung. Fibres longer than 20mm are
cleared with a half-time of 1.3 days... Drs. Arnold Brody and Bruce Case
challenged these findings quoting alternative research such as that of
MM Finkelstein and A Dufresne. Their paper: Inferences on the Kinetics
of Asbestos Deposition and Clearance Among Chrysotile Miners and Millers
found a compartment clearance for chrysotile similar to that for amphiboles.
- Two years of sponsorship has been obtained for an initiative to assist
asbestos victims and their carers. The Mesothelioma Information Project
has produced a free booklet which is available from Macmillan Nurse Mavis
Robinson, the Project Manager, at mavisro@ulth.northy.nhs.uk Alternatively,
a request can be made to the information helpline: 0113 2066 466. According
to Mrs. Robinson: A major part of the project is to establish a network
of specialist nurses throughout the country who can advise and assist
in their own areas.
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