Issue 33: Winter 1998/99
Table of Contents:
1. South Africa: The Asbestos Legacy
2. The Chrysotile Wars
3. Award for Mental Trauma
4. News Round-up
1. South Africa: The Asbestos Legacy
On the day of his inauguration as President of South Africa, Nelson Mandela pledged to "liberate all our people from the continuing bondage of poverty, deprivation, suffering, gender and other discrimination." The excesses and negligence of the South African asbestos industry during the years of Apartheid, has contributed significantly to the levels of disability, premature death and financial hardship among asbestos workers, their families and local residents. During that period, South African and foreign companies such as Cape plc, T&N Ltd, Griqualand Exploration and Finance (GEFCO) and Everite-Eternit worked assiduously to extract the maximum profit from a natural resource found in the Northern Cape, the Northern Province and Mpumalanga. In 1977, asbestos production peaked at 380,000 tons making South Africa the third biggest supplier in the world. GEFCO achieved record output and financial returns during the decade commencing in 1966; in 1970, company profits rose by thirty-two per cent. According to a government publication, the Republic of South Africa (RSA) is currently faced with an "epidemic of asbestos diseases due to past practices." Unfortunately, past practices are not the only problem. Twenty thousand tons of chrysotile are still used in the country annually; seven companies employ three thousand workers to manufacture asbestos-containing building materials and pipes. Levels of environmental pollution in some areas are colossal; huge asbestos dumps, including eighty-two in the Northern Cape alone, are scattered throughout the countryside. To date, the government has spent R44 million ($7.5 million) on rehabilitation of derelict and "ownerless mines." Estimates that R52 million are needed to complete the task seem optimistic. In November, a group of two hundred and fifty scientists, doctors, government officials, health and safety specialists, trade unionists, asbestos industry representatives and local people met for three days under the auspices of the National Parliamentary Portfolio Committee on Environmental Affairs and Tourism in Johannesburg "to address the urgent health and welfare problems relating to asbestos-induced diseases in South Africa." Delegates included Ministers from the RSA and Zimbabwe, experts from the USA and Australia and observers from regional asbestos workshops held earlier in the month; translations into the eleven languages of the RSA were available. The significance that official sources attached to community involvement was reflected by the predominance of delegates from "affected" areas and groups.
In her message of welcome to the National Asbestos Summit, Gwen Mahlangu MP, Chairperson of the Committee on Environment and Tourism, called for: "indigenous solutions informed by the international community... (and) consensus amongst all stakeholders." Fred Gona, speaking on behalf of the labor caucus, condemned multinationals which "creamed all the profits off from the production of Asbestos" and then disposed of their South African liabilities. Provincial representatives and asbestos sufferers identified a wide range of problems including: the lack of information available on asbestos, asbestos-containing products and asbestos-related diseases, the low levels of and difficulties in obtaining occupational compensation, the ineligibility of casual workers and victims of environmental exposure to compensation, inadequate occupational health-care services, the lack of government co-ordination and the need for more local involvement with rehabilitation and aforestation programs. Calls to ban chrysotile and implement "the polluter pays principle" were reported in the submission from the Northern Province (NP) workshop. Dr. Marianne Felix told the NP meeting that a "study done so far at Mafefe on the adults shows that more than 50% of the adults are infected with asbestos." Proposals for a unilateral ban, which were made by the Kwazulu-Natal delegation and the rapporteur from the West Cape workshop, were unrealistic according to an industry spokesman who pointed out that "a number of countries have implemented a ban but since retreated because of litigation... the saving of life could not justify the unemployment and loss of resources that would result." The Zimbabwe delegation fought hard in plenary and workshop sessions to counteract calls for a ban by 2001. South Africa is a substantial importer of chrysotile, one of Zimbabwe's major exports. The Klinger Group, processors of raw chrysotile for over one hundred years, also remains firmly committed to the policy of "safe sustainable use" according to Don Munro, a senior executive. Munro admitted, however, that non-asbestos technology is now being investigated as "there is community hostility to asbestos and we do not push products that have a poor press." The Industry View, a booklet distributed at the Summit, contained some controversial assertions: "there is indeed a safe level of exposure to asbestos... even if asbestos-cement is broken or cracked, respirable asbestos fibres remain encapsulated in the cement matrix (and) ... the seven major manufacturers using asbestos as a raw material should be allowed to continue their enterprises."
Barry Castleman, an Environmental Consultant from the USA, supported proposals for a South African ban, pointing out that in three years time "the country's remaining asbestos mine at Msauli will be exhausted... production of fibre-cement pipe... can become asbestos-free and the country's brake manufacturing plants would already have been converted." Castleman criticized the industry's position commenting that "controlled use of asbestos in third world countries is like sustainable development: everyone talks about it but no one is doing it." The declaration and final report of the conference are being submitted to the National Assembly of Parliament and relevant government departments; they will shortly be accessible at the parliamentary website: www.parliament.gov.za under the classification "new". Recommendations by the Summit's four commissions include action by the Government to "sue foreign companies responsible for - human suffering, environmental degradation, repayment of government billions spent on rehabilitation, remediation and health service provision." While an immediate ban on amosite, crocidolite and tremolite was endorsed, accommodation was reached on chrysotile with agreement to implement a prohibition "within a reasonable period."
On December 14, BBC2's late evening news program featured a report on the commercial activities of the British company Cape plc in South Africa. According to the Memorandum on the Asbestos Industry in the Cape Province of 1915: "The history of the asbestos industry in the Cape has been, until quite recently, practically that of the Cape Asbestos Company, and that corporation still controls the great bulk of the production." During the program, the existence of a double standard was demonstrated by the disclosure that although "tens of millions of pounds" has been paid out in Britain, no compensation for asbestos-related diseases or environmental contamination has been awarded in South Africa. Survivors from Cape's facilities in Koegas and Prieska spoke of conditions in which entire families had been exposed to astonishing levels of contamination. Peter Mokaba, MP and Deputy Minister for Environmental Affairs, was adamant that the South African government would support legal action currently being taken in Britain by five South African sufferers stating that Cape was "responsible for the consequences of their operations wherever they operated... wherever they enjoyed their profits." On December 14, the House of Lords decided that these cases could proceed, staying an appeal by Cape which had maintained that the appropriate forum was South Africa. Leigh, Day & Co, the plaintiffs' lawyers, confirm that they have taken instructions from more than two thousand Northern Cape and Northern Province claimants. Closer to home, Vincenzina Gisondi is one of a group of Italian workers suing Cape for her exposure to asbestos at its factory in Northern Italy. Dr. R.Guarinello, the State Prosecutor for Turin, is considering criminal charges relating to the Capamianto works saying: "The people responsible for not enforcing the safety regulations have to be punished."
2. The Chrysotile Wars
The issue of chrysotile is still very much on the agenda with progress being made in recent weeks by the World Health Organization (WHO), the European Union (EU), the Health and Safety Commission (HSC), the World Trade Organization (WTO) and the International Maritime Organisation (IMO). A two year wait for the publication by the WHO of Environmental Health Criteria 203: Chrysotile Asbestos was rewarded in October when the book finally appeared. Produced within the framework of the Inter-Organization Programme for the Sound Management of Chemicals, the report concluded that: "Exposure to chrysotile asbestos poses increased risks for asbestosis, lung cancer and mesothelioma in a dose-dependent manner. No threshold has been identified for carcinogenic risks." Highlighting potential hazards from the continued use of chrysotile in friable and highly exposed products, the two hundred page book stated: "where safer substitute materials for chrysotile are available, they should be considered for use." Throughout the Autumn, headway on the implementation of a ban on chrysotile was detected at several levels of the EU. On October 19, a draft commission directive for a ban was sent out for consultation to Member States. The text of this document indicates that "a very effective way of protecting human health is to prohibit the use of chrysotile asbestos fibres and products containing them." The provisions, made as an adaptation to technical progress under Annex 1 of Council Directive 76/769/EEC, would not require enactment of additional legislation and could therefore be adopted at the March, 1999 meeting of The Technical Progress Committee. Peter Skinner, MEP and Chair of the European Parliament Asbestos Concern Group, believes that this is the likeliest outcome. In December, Dr. Jeanie Cruickshank, head of the Health and Safety Executive's (HSE's) Chemicals Policy Division, seconded Skinner's prediction: "It is possible that Europe-wide agreement will be reached early next year." To placate Greece, Spain and Portugal, all of which have substantial asbestos cement industries, a five year period of transition has been suggested. Under the principle of subsidiarity, Member States are free to bring forward national restrictions at any time as long as an overall ban is in place by January 1, 2005. It is likely that some countries, such as Germany and Italy, will use the EU ruling to augment existing national chrysotile proscriptions while the majority will phase in the ban, removing exemptions as more information on alternatives is acquired. In the UK, December 17 was the deadline for submissions relating to Consultative Document 140: Proposals for Amendments to the Asbestos (Prohibitions) Regulations 1992. Although reports that Canadian and Brazilian delegations travelled to London in December to make personal representations on this issue remain unconfirmed, it is believed that comments from over one hundred and thirty groups were received by the closing date. Observers who regard the UK ban as a fait accompli cite the publication of the HSE leaflet: Substitutes for Chrysotile (white) Asbestos as evidence of the government's intention to introduce further restrictions. Information that the HSE is collating detailed proposals for the imposition of a "duty to manage asbestos already in place in buildings" supports this opinion.
The Working Group on Limitations on the Marketing and Use of Dangerous Substances and Preparations: Asbestos, a body operating within the EU's Directorate-General III, met in Brussels on October 29 to study the proposed ban directive. A discussion paper circulated at the meeting explored some of the legal ramifications of the text, pointing out that: "the outcome of the (WTO) dispute obviously has very important consequences for the Commission's current draft Directive, and it has been necessary to ensure that the draft is fully in line with WTO requirements and the position which the Commission is taking at WTO." On November 25, Canada confirmed a previous request that the WTO Dispute Settlement Body set up a panel to examine the complaint against French restrictions on the import and sale of chrysotile. According to WTO sources, "the United States indicated its interest to participate as a third party in the panel proceedings." In mid-December, EU representatives arrived in Geneva to discuss the composition of the dispute panel; they were informed that the Canadians were not ready to proceed with discussions and had requested a postponement. Simultaneously, EU officials were formally petitioned to reconsider the chrysotile prohibitions.
In November, Michael Clapham, MP for Barnsley West and Penistone, told the House of Commons: "Canadian producers would have us believe that white asbestos is so safe that we could spread it on our cornflakes in the morning. They do not realise the problem, or will not accept the evidence that it is a dangerous material. However, Europe is not their real target. Their target is the third world, where there are no controls. They know full well that it offers a limitless market. At the same time, through the World Trade Organisation, they can obstruct a European ban. There is a tendency for such matters to become caught up in interminable bureaucracy." The Canadian endorsement of chrysotile is inextricably linked to political uncertainty over Quebec, the center of the Canadian asbestos industry. It is becoming clear that other provinces are growing weary of being dragged into a fight not of their making. Rumours abound that Canadian government departments, including those responsible for public and occupational health, have isolated the Trade Ministry which is orchestrating the international backing for chrysotile. In November, a journalist writing in the Winnipeg Sun criticized "the campaign to spread industrial disease to the Third World," asking "Could the boy scout nation really be a merchant of death?" Jim Brophy, a Canadian health and safety activist, is appalled at his country's actions; he has publicly stated: "When we ship this material, we might as well be shipping poison along with it, because we know that the Indian workers, the South Korean workers, the Thai workers, will have no protections against asbestos. They will develop the same diseases that have killed hundreds of thousands of Canadian and American workers." A report by the Canadian Trade Policy Review Body, released on December 17, expresses Canada's commitment to the environment and its intention to work with private and public sectors to "ensure that trade and investment liberalisation does not undermine basic values, standards, culture, or a government's right to regulate for legitimate public interests." And yet, with the action at the WTO Canada is most definitely challenging the French "government's right to regulate for legitimate public interests" i.e. the protection of its citizens from the hazards of asbestos exposure. A ruling by the European Court of Justice on December 18 may discourage the pro-chrysotile lobby. Under EU law, Member States are permitted under certain conditions to set more rigorous occupational health and safety standards than those imposed by community directives. In this case, Italian legislation which had reduced the permitted benzene content of petrol to one third of that allowed by the EU was upheld despite claims that these preventative measures seriously disadvantaged the Italian Petroleum industry.
International groups have protested vociferously against Canada's actions at the WTO. On November 6, the Ban Asbestos Network Japan, demanded that Prime Minister Chretien: "withdraw the complaint to the WTO and ban the export of asbestos." The annual use of 180,000 tons of chrysotile in construction and friction materials was one of the issues discussed at a series of well-attended public meetings organized by the Japanese Occupational Safety and Health Resource Center in November. European campaigners described the experiences of English and French workers to Japanese construction and shop-floor workers, academics, trade union representatives and occupational safety and health specialists in Tokyo, Osaka and Hiroshima. Newspaper, television and radio coverage was stimulated by these events which local people hope will revitalize attempts to curtail the widespread use of chrysotile in Japan. Calls for the prohibition of chrysotile were also heard at the plenary and workshop sessions of the National Asbestos Conference in Clydebank, Scotland on November 10. Other key issues addressed at this forum included the effectiveness of occupational exposure limits, complexities of social security regulations, developments in civil law and the regional incidence of asbestos-related disease. The European Trade Union Confederation (ETUC) is committed to the chrysotile ban: "Considering that most of the world production of asbestos is used within third world countries, the ETUC calls for an international ban on asbestos and condemns the export of asbestos waste to countries outside the EU."
A spokesperson for the International Chamber of Shipping has said that the use of asbestos can no longer be condoned. Asbestos materials, widely used to insulate and fireproof thousands of ships, continue to put maritime workers at risk. In January, 1999 the IMO's Sub-Committee on Fire Protection will consider a proposal by France for the prohibition of all forms of asbestos in new ships. Exemptions could include: friction material for compressors and vacuum vane pumps, some watertight joints and linings and flexible high-temperature thermal isolation assemblies. French procedures for risk assessment, sampling, recording, dust measurement and periodic monitoring will be examined. The implementation of sound practices throughout the industry could prevent exposures such as those which occurred on-board the MV Pioneer at the Alisa Shipyard in Scotland between February 9 and March 4, 1997. During refit work on the 1974 Caledonian MacBrayne ferry, some crew members and shipyard workers were exposed to asbestos from insulating boards under deckhead panelling. The £5,000 fines imposed by Ayr Sheriff Court on the shipyard and sub-contractor Cape Industrial Services were classified as "meagre" by trade union representative Martin Rogers who said: "Penalties in such cases ought to reflect the potential consequences of exposure and the need to send a strong signal to yards and shipping companies of the need for appropriate care in such circumstances."
3. Award for Mental Trauma
Anxiety over future illness has resulted in an award of £200,000 to Martin Budds, a Bristol engineer, who has been diagnosed as 20 per cent disabled through pleural thickening. The fifty-two year old had been exposed to asbestos over a period of two years when he worked for the firm of G. Applegate and Sons Ltd. during the early 1960s. Although Applegate's employers' liability policy for the relevant period had not been traced, a claim was made by his solicitor Stephen Burbidge of the Bristol solicitors Humphreys & Co. under a retroactive insurance policy acquired by the firm's parent company. The defendants accepted liability at the eleventh hour last Spring but contested the amount of compensation claimed. On October 13, Michael Kallipetis QC, sitting as a Deputy High Court Judge, assessed the amount due as £197,447 damages plus interest of £2,900. While £40,000 was awarded for pain, suffering and loss of amenity, the bulk of the award was for the loss of past and future earnings as it was found unlikely that Mr. Budds would ever work again. Evidence from the plaintiff's psychiatrist that the diagnosis of his condition had triggered a psychiatric decline in which the plaintiff felt "like a disabled wreck" was pivotal at the hearing. Reflecting on the outcome of this case Frank Burton QC, Mr. Budd's barrister, said: "The Court was willing to accept that Mr. Budds suffered such significant psychological reaction to the diagnosis that he experienced an actual psychiatric condition, the severity of which was reflected by this award."
4. News Round-up
Pathology, Immunology, and Gene Therapy and Current Asbestos Issues, volumes 17 and 18 respectively of the Sourcebook on Asbestos Diseases, were published in 1998. In the latter work, a chapter on the Simian Virus 40 (SV40) by M Carbone et al concluded that "SV40 has not been proven to be sufficient for the development of malignant mesothelioma in humans... The possibility of a synergistic relationship between asbestos and SV40 would also explain why people exposed to asbestos or SV40 alone rarely develop the malignancy."
Safety, Health and Environmental Hazards at the Workplace by A Dalton (Cassell, 1998) is recommended by Michael Meacher, formerly Minister for the Environment, for "its unique approach in combining safety, health and environmental issues at the workplace."
Too little, too late? The Home Office and the Asbestos Industry Regulations, 1931 by P Bartrip and Protecting the Workers: The Medical Board and the Asbestos Industry, 1930s-1960s by G Tweedale and P Hansen appeared in volume 42 of the Medical History Journal in 1998.
The First Common Law Claim for Asbestosis: Kelly v. Turner & Newall Ltd (1950) by N Wikeley in the Journal of Personal Injury Litigation 1998 concluded that the case represented "a microcosm of the balance struck in the asbestos industry between workers' health and company profitability: between 1931 and 1948, £87,938 was paid out to 140 asbestosis victims under the Asbestosis Scheme; in the same period, nearly £7 million was distributed to shareholders."
Carcinogenic Implications of the Lack of Tremolite in UICC Reference Chrysotile by A L Frank et al, published in the American Journal of Industrial Medicine 1998, found that "chrysotile should be considered as having the biologic ability to produce cancers, including mesotheliomas."
Contamination of Poliovirus Vaccines with Simian Virus 40 (1955-1963) and Subsequent Cancer Rates by H D Strickler et al in JAMA (January, 1998) concludes: "After more than 30 years of follow-up, exposure to SV40-contaminated poliovirus was not associated with significantly increased rates of ependymomas and other brain cancers, osteosarcomas, or mesotheliomas in the United States."
An article claiming that chrysotile is "quite harmless" (Safe asbestos; October 27) appeared in Lloyd's List, the daily newspaper of Lloyd's of London. On December 3, a Letter to the Editor contradicted this opinion saying: "There is, in fact, no safe asbestos whether it is chrysotile, crocidolite or amosite." On December 15, a follow-up article: Sword of Damocles hangs over thousands of workers discussed the risks from asbestos products still on-board ships.
On October 6, a thirty minute program in Radio 4's File on Four series asked : "How dangerous is white asbestos and what should we be doing to make it safe?"
The article: Time to Come Clean: http://www.etuc.org/tutb/uk/asbest.html
The EU's Scientific Committee on Toxicity, Ecotoxicity and the Environment:
BBC's online network asbestos link:
The Mesothelioma Research Group of the Sir Charles Gairdner Hospital in Perth, Australia: http://www.uwa.edu.au/cyllene/tehaenel/mesounit
The World Trade Organization: http://www.wto.org
The University of Occupational and Environmental Health, Japan:
Compiled by Laurie Kazan-Allen