BRITISH ASBESTOS NEWSLETTER

Contents:

1. Asbestos Seminar in Westminster
2. Cape Asbestos Fund: Serious Proposal or Corporate Scam?
3. Recognition of Asbestos-Related Lung Cancer
4. Tackling UK Asbestos Waste

1. Asbestos Seminar in Westminster

The annual asbestos seminar of the House of Commons Asbestos Sub-Committee took place in Portcullis House on July 12, 2005. The topical agenda of the two hour meeting attracted a capacity audience which included: Margaret Hodge, Minister of State for Employment and Welfare Reform, Nick Brown, formerly the Minister for Work, several MPs, representatives of asbestos victims' groups from Manchester, Liverpool, London, Cheshire and Cardiff, medical researchers, civil servants and asbestos personal injury specialists. Welcoming delegates, Chair Michael Clapham MP explained that the purpose of the Asbestos Sub-Committee was to marshal community and political support to improve the treatment of UK asbestos victims. Recent initiatives of the Sub-Committee had streamlined access to government benefits and increased political pressure to make emerging drug therapies universally available. Clapham was appalled that the use of asbestos was increasing in the developing world and reiterated his commitment to a global ban on asbestos. In June 2005, Clapham had urged Prime Minister Tony Blair to use Britain's Presidencies of the G8 and EU to secure a worldwide ban on asbestos, saying:

“We all recognise asbestos can have serious effects on people's health and we should aim to achieve a global ban… the manufacturing focus has shifted to the developing world and the disease, the disability and the deaths that will be caused by (asbestos) exposure will add to poverty.”

An Early Day Motion that Clapham presented to Parliament on May 25, 2005 called on the G8 and EU to:

“take steps to transfer technological information on asbestos controls and substitutes to developing economies where there is no effective asbestos regulation, including the Bangladeshi and Pakistani ship-breaking beaches, the Korean textile factories and the Chinese, Vietnamese and Thai asbestos cement roofing industries, in a sustained international endeavour to bring about an asbestos-free environment.”¹

Kicking off the seminar, Ian McFall from Thompsons Solicitors was scathing about the treatment of asbestos victims by Turner & Newall (T&N), formerly the UK's largest asbestos group. In the presentation Dealing with the Aftermath of Corporate Robbery (T&N), he accused T&N's senior corporate lawyer in the 1950s of “lying repeatedly,” and described the company's treatment of its asbestos victims as the “behaviour of a corporate psychopath.” T&N lied to the government and to its workforce; it followed a policy motivated by “corporate greed and corruption” to wear victims and their relatives down by “attrition” in order to minimize compensation payments. Its legal strategy was based on deceit, delay and denial. Citing the infamous case of Charlie Coyle, a Glasgow lagger, McFall read out an extract from the minutes of a T&N Board meeting:

“This man (Coyle) has a very poor expectation of life. If he does succumb, the claim will not be more expensive and without his evidence his solicitors will be in greater difficulty. In short, tactically, we will have nothing to lose by leaving the matter in abeyance.”

Sadly their prediction was accurate. After Coyle died, T&N paid his widow a fraction of what the claim was worth on the condition that she waive all legal rights. For decades, the company outmanoeuvred injured workers and grieving relatives:

“The Company has so far been lucky enough not to encounter experienced and capable lawyers, adequately funded by legal aid or supported by trade unions who would carry out detailed investigations and realise there is no defence to these claims.”

When U.S. asbestos giant Johns-Manville began to affix warning labels to its asbestos products, T&N decided that the “risk of claims was not as great as the risk to loss of sales” and continued to sell its wares with no warning labels.

In view of the escalation in claims from former T&N employees and local residents during the 1990s, the company's acquisition by the U.S. automotive parts manufacturer Federal Mogul (FM) in 1998 astonished UK observers. Within three years of the take-over, a deluge of “claims for unimpaired (U.S.) victims based on dubious evidence of exposure to any particular manufacturers' asbestos product and dubious evidence of attributable asbestos related disease” resulted in FM/T&N taking refuge in Chapter 11 Bankruptcy in the U.S. and Administration in the UK. These financial machinations allowed the company to carry on business as usual whilst, at the same time, consigning all pending lawsuits to a legal limbo.

In the last 3 years, attempts have been made to uncover T&N's murky insurance history. Applications to the Court have enabled Thompsons Solicitors to ascertain that:

• T&N had no available public liability insurance and no available employers' liability insurance prior to 1969;

• T&N's post-1969 employers' liability insurance purported to exclude liability for asbestos-related disease.

UK administrators took legal action to force T&N's former insurers and reinsurers to honor post-1969 policies. Initial success against Royal Sun Alliance and the Brian Smith Syndicate at Lloyd's of London convinced the insurers to offer £36 million ($62.6m) to settle the lawsuit. The settlement money is invested in an escrow account pending agreement on a Scheme of Arrangement for the distribution of compensation. Unfortunately, eligible claimants constitute a minority of the injured and exclude: employees with pre-1969 exposure, victims of para-occupational exposure - people who were exposed to asbestos brought home on relatives' workclothes and local people who lived near T&N factories. T&N's UK victims “remain caught up in a cross Atlantic battle which has been waged for over three years,” and is likely to continue. The T&N story reveals:

“Failure at all levels. Failure of primary health and safety measures. Failure to make insurance compulsory long before 1969. Failure to implement statutory framework to deal with breaches of health and safety. Failure to protect workers from the insolvency of wrongdoers.”

McFall called on the UK Government to “do everything possible to assist this most beleaguered group of asbestos victims and ensure that such a tragedy and injustice can never be repeated.”

The next speaker was Colin Laidler, whose father Ronald died of mesothelioma on September 26, 2002. Colin and his brother Ronald were the 3rd generation of Laidlers to be employed by T&N. The price paid by the family for years of loyal service was appalling: Grandfather Laidler died from asbestosis, Grandmother Laidler died of lung cancer, Ronald Laidler Senior died of mesothelioma, his widow and one son have pleural plaques.

Four years after he retired, Mr. Laidler Senior was diagnosed with mesothelioma. Colin recounted:

“I can vividly recall, as a teenager, my father telling me how he had sat at his father's bedside and mopped the sweat from his brow. Sweat that had been caused by the sheer physical exertion of trying to breathe. I can't begin to think what thoughts went through my father's head following his diagnosis. I know what went through my mind and I pray that thought isn't also passed through 3 generations of Laidlers.”

On the same day that Mr. Laidler Senior entered a claim against T&N (May 1, 2001), he began to receive treatment from specialist cancer nurses. The coming months were filled with hospital stays, medical appointments and the paraphernalia required by his failing health: oxygen cylinders, a bath lift, a stair lift, morphine tablets and injections. As ill as he was, he remained determined to provide a modicum of financial security for his wife. Within five months of bringing the claim against his employer of 39 years, the case was settled. Unfortunately, four days later T&N went into administration:

“My father knew about the complexity of the case; he knew of the duplicity and mendacity of some of the actors in this sorry tale; he knew that T&N's legal costs were eating into any monies available and this could prevent him getting his rightly awarded compensation; and he wondered if there would ever be a satisfactory outcome to it all. Now, nearly 3 years after his death, I wonder, as he did then.

When you are employed by someone, you don't for a moment wonder if they are insured, self-insured or reinsured of if they have made a full material disclosure to that insurer or not. You don't wonder who the ultimate owner or employer is or who may become the owner of the business in years to come. You don't wonder whether you will become embroiled in the detailed, and at times incomprehensible, workings of the UK's legal and financial systems; less still those under another nation's jurisdiction.”

As Colin spoke, a photograph of his father was projected on the screens in the Wilson Room. In quiet, measured tones Colin described his father's dignity and trust, a trust which was betrayed. “I hope following today, in this place, that somewhere, someone can restore my family's faith in justice, honesty and fair play, and that our pain and sadness can be made more bearable.” It was fortuitous that Minister Margaret Hodge was in attendance for the section of the agenda which included this resolute and moving contribution; she left the seminar shortly after Colin's talk ended.

An Update on the T&N Ltd. Administration was the subject of a presentation by Simon Freakley and Jamie Gleave, from Kroll Ltd., the court-appointed administrators of T&N. The cross-border nature and scale of the proposed FM/T&N reorganization make this amongst the most complex exercises in insolvency law ever conducted. Initially the UK administrators, whose role is to maximize the assets available to pay creditors, had believed that the use of a U.S. channelling injunction to funnel all asbestos claims to a trust fund would be the most efficient and quickest way to resolve the hundreds of thousands of asbestos claims. Unfortunately, the UK administrators could not support the plan put forward by the U.S. proponents which, they believed, did not deal fairly with or represent maximum value for UK creditors. Discouraged by the lack of movement in the U.S. position, the administrators set a deadline of April 30, 2005, at which time a controlled realization of T&N's assets was begun. Whilst marketing of the company's assets is continuing, a second deadline of September, 2005 has been set; the administrators hope that a mechanism will be found before then which would enable the U.S. plan proponents and UK administrators to agree on the way forward. If not, the administrators will ask the UK court to endorse the withdrawal of T&N's UK companies from the Chapter 11 process.

Information on T&N's current assets and liabilities was presented by Jamie Gleave. As things now stand, the company's liabilities are so high, that only 13-17 pence/pound of claims is available to pay off creditors such as the UK pension fund and U.S. and UK asbestos claimants. The settlement made with the company's former employers' liability insurers last year should result in 60-70 pence/pound being paid; payments could begin in early 2006. Unfortunately, only a quarter of asbestos claimants will be eligible. The £500 million (US$874m) insurance policy issued by three European reinsurers in the 1990s is the subject of litigation; this layer of insurance can only be accessed once T&N has paid out a further £300m in claims. The administrators anticipate that continued litigation will be required to force the reinsurers to honor this policy; if/when the administrators obtain a favourable decision from the courts on this issue, only 5-6% of the sum awarded under this policy will be available to pay UK claims.

Since 1985, the British Lung Foundation (BLF) has been supporting people living with lung disease. The realization that the incidence of mesothelioma, a formerly rare lung disease, would continue to increase for the foreseeable future spurred the BLF to consider what the organization could contribute to the national debate on mesothelioma. In her presentation A Mesothelioma Charter Chief Executive Dame Helena Shovelton highlighted the need for concerted action by asbestos victims' support groups, NGOs, politicians, medical researchers and physicians and explained the BLF campaign which was launched at the March 9, 2005 Mesothelioma Summit. During the discussions at the summit, the idea for a Mesothelioma Charter was born; since then, the text has been revised through consultation with interested parties. The Charter asserts that mesothelioma patients and their families have a right to: good quality information, the support of a qualified nurse, the best possible medical treatment, up-to-date advice and assistance on claiming benefits, prompt receipt of benefits, legal advice from asbestos personal injury specialists and guidance on end-of-life decisions and home care. It calls on the Government to: make mesothelioma a national priority, fund medical research in treatment options and produce guidelines on best practice; employers are urged to take all possible steps to avoid future hazardous exposures. On February 27, 2006, a Mesothelioma Action Day will be held by the BLF to raise public, media and government awareness of the harsh reality and prevalence of this killer disease.

The final subject on the agenda, Asbestos Issues in Spain, was addressed by Angel Carcoba, from Confederación Sindical de Comisiones Obreras (CCOO), one of Spain's largest trade unions. In the decades preceding the asbestos ban in Spain (2001),² more than 2 million tons of chrysotile (white asbestos) were imported; during this time 140,000 workers in the Spanish shipyards, railroad works, automotive and textile industries, brake pad and friction material manufacture were exposed to a mixture of crocidolite, amosite and chrysotile. According to the (Spanish) National Centre of Epidemiology, the asbestos mortality rate has risen by 90% from 419 in 1992 to 795 in 2002.³ Unfortunately these statistics do not tell the whole truth; investigations carried out in the province of Madrid revealed annual asbestos deaths of 460. Epidemiologists predict that between 2010 and 2040 there could be as many as 55,000 asbestos deaths in Spain.

The debate on asbestos which took place in Spain from 1980 considered the scientific, social and political implications of hazardous occupational exposure; nowadays, the Spanish asbestos hazard has become a public and environmental health hazard. The European Federation of Fibercement Manufacturers estimates that there are in excess of 70 million tons of asbestos-containing material on and in buildings throughout the European Union. Photographs exhibited by Mr. Carcoba showed piles of asbestos debris littering the countryside. The CCOO, which was at the center of the lobby for the national asbestos ban, has assisted asbestos victims in their battle for compensation and supported their efforts to mobilize. The union has produced and distributed a range of literature on the nature and identification of asbestos-containing materials. It is working with other stakeholders to bring to fruition the following projects:

• the setting up of a health surveillance program for at-risk workers; this program has now received the approval of the National Commission;

• the establishment of a national mesothelioma register and a program for the psychological and social support of asbestos victims;

• epidemiological research in asbestos hot-spots;

• legislation to allow the early retirement of asbestos-exposed workers;

• the creation of a national compensation fund and procedures which recognize asbestos injuries as occupational;

• the adoption of a national protocol to protect the public from hidden asbestos in the Spanish infrastructure; mandatory asbestos audits of buildings and structures.

Acknowledging that the Spanish asbestos experience replicates that in other countries, the speaker put forward a range of proposals for EU action:

• the implementation of new measures to monitor compliance with all EU asbestos guidelines;

• the harmonization of medical surveillance protocols and asbestos disease registers;

• the setting up of procedures to ensure collaboration between work inspection bodies and health and protection systems;

• the controlling of cross-border operations;

• the regulation of procedures and systems of accreditation for specialised companies (such as those manufacturing chlorine with the use of asbestos diaphragms in electrolytic cells).

In the post-ban era, trade unions have a vital role to play in combating the challenges we face within Europe; further afield, unions have a responsibility to share their knowledge of asbestos with others who have not yet banned the killer fiber.

Issues which were raised during the discussion segment of the program included:

• the level of compliance with the Control of Asbestos at Work Regulations; there is no evidence of increased enforcement by the Health and Safety Executive (HSE). The number of HSE inspectors has remained static and asbestos enforcement is not considered a priority issue.

• Paul Rowen, the new MP for Rochdale, said that the lack of joined-up government is exacerbating problems faced by people in Spodden Valley who are concerned that plans by “unscrupulous developers” to build on a 72 acre asbestos-contaminated site formerly occupied by T&N will further pollute the environment.⁴ Rowen said that 3 government departments and 4 agencies have been unable to provide reliable guidance on safety levels for asbestos contamination in soil, rubble and the air.

• even successful claimants who obtain compensation under the T&N Employers' Liability Scheme of Arrangement will not obtain 60-70% of the face value of their claims as payouts will be apportioned dependent on the years of pre-and post-1969 asbestos exposure; they could find the 60-70% of face value reduced to 20%.

• historically there has been an institutional failure which has continually disadvantaged workers suffering from asbestos diseases; the government needs to investigate how various schemes can be coordinated to maximize the support given to asbestos victims and prevent future avoidable deaths.

Before ending the session, the Chair thanked Colin Laidler and Angel Carcoba for coming to London to participate in the seminar, presenting each of them with framed agendas as a memento of the day. Pledging to continue the work of the Asbestos Sub-Committee, Michael Clapham promised that issues raised during the discussion would be followed up at the highest level of Government.

2. Cape Asbestos Fund: Serious Proposal or Corporate Scam?

After the disgust generated by the insolvencies of Chester Street Insurance Holdings Ltd. and Builders Accident Insurance Ltd., the on-going saga of the T&N administration, the furore surrounding the James Hardie debacle in Australia and the Bush administration's attempt to shut down U.S. asbestos litigation, it is no wonder that asbestos victims' groups greeted with scepticism news that Cape PLC, formerly the second biggest asbestos group in the UK, intended to establish a £40 million ($70m) Asbestos Fund (the Scheme) “to increase security for claimants.” Experience has shown that when new channels for paying asbestos claims are devised, the rights and entitlements of asbestos victims are at even greater risk.

On June 16, 2005, Martin May, Cape's Chairman, provided a deeper insight into the company's motivation when he said:

“We believe that, if accepted, these proposals should enable all Scheme (asbestos) claims to be settled. This provides significant de-risking for Cape, removes a significant obstacle to the Group's growth and leaves the Group better able to generate the resources needed to secure the continued payment of compensation to claimants.”

The threat of asbestos liabilities has suppressed Cape's share price for some years. Investing £40m in a UK compensation fund could be a relatively cheap way to reassure investors that the company had insulated itself from the possibility of escalating claims. It is of interest to note that the largest payout Cape has made (£7.5m + £2.75m in legal costs) in the last few years was to settle 7,500 South African claims; foreign plaintiffs would be ineligible to make claims on this fund.

The £40m allocated to the Scheme would be administered by a Cape subsidiary: Cape Claims Services (CCS); the CCS board of directors would include 3 Cape directors and 2 independent directors. Cape maintains that the initial funding would last 12 years. In 2008 and thereafter every 3 years, the Fund would be independently reviewed; if a shortfall were found Cape would top up the coffers out of available cash flows:

“should Cape not be able to meet its top-up obligation in any one year, Cape will be required to make good the shortfall in the next year, again subject to the extent it is able to do so. Should Cape be unable to do so and the Fund falls below a specified level, only a percentage of each claim will be paid unless and until the Fund is restored to that specified level.”

Under the Scheme, once the initial £40m falls below £24m, Cape can pay a fraction of the face value of claims. No doubt the company believes that current UK asbestos claimants will support the Scheme of Arrangement in order to grab their share of the £40m with little consideration for the fate of future UK claimants who, when their turn comes, could find the well has run dry. As Tillinghast Actuaries estimate the aggregate projected discounted value of all the Group's unpaid UK asbestos-related claims at £80.9m, a figure which is based on a range of £49.5m-£160.2m, the £40m buy-out seems a bargain especially since there is no guarantee that the company will have to pay any additional money into the Fund. The English Asbestos Victims Support Groups' Forum (Forum)⁵ is underwhelmed by Cape's proposal saying, in its June, 2005 press release:

“The Forum believes that the scheme as currently proposed is unacceptable to Cape's asbestos victims. Although the scheme is intended to 'ring fence' UK asbestos claims, it does not do this, except for the initial £40m. If claims were to increase, there is no guarantee that Cape will top up the Fund and asbestos victims would be left 'high and dry'. We are not convinced by Cape's safeguards for the Fund.”

Sixty-one MPs expressed their opinion about Cape's proposal in Early Day Motion 536:

“this House is most concerned about the Cape plc proposals to establish a fund to pay their UK asbestos victims and thereby cap their asbestos liabilities for UK claimants; is further concerned that the scheme does not give an assurance that if the proposed £40 million fund is inadequate it will be topped up to meet the shortfall; believes that it may leave victims insufficiently compensated and reliant on state support; therefore calls on Cape plc to publish its actuarial advice and to subject the proposal to independent financial scrutiny and supports the claimants' solicitor in their appeal to the courts for more information to be made available and for a realistic timetable to be set so that the scheme can be properly evaluated before there is a vote on it.”⁶

The financing of the Scheme will comprise:

• a flotation of 29,090,910 new Ordinary Cape Shares at 110 pence per share     £22m

• the Group's existing resources (through the disposal of certain non-core UK properties and leverage of overseas assets)                                                   £ 3m

• increased loan facilities from Barclays Bank                                                  £15m

Having announced the Scheme on June 16, 2005, the timetable of principal events as laid out by Cape left little time for investigation or consultation:

There is a consensus amongst asbestos personal injury solicitors that “the timetable for voting on the proposed scheme is far too tight and there is a real risk that asbestos victims and their families will be asked to vote without full knowledge of the risks.” The Forum warned Cape “not to railroad through its proposed scheme.” In the weeks since Cape's plans were announced, asbestos victims' groups and solicitors have requested voluntary disclosure of the Tillinghast actuarial report, details of the company's insurance history and other relevant information. To date, none of this has been forthcoming. In a surprise announcement on July 21, Cape acknowledged that the proposed schedule had proved unacceptable and that “due to the complicated nature of the proposals the timetable should be extended to provide a further opportunity to review and evaluate the proposed Scheme prior to the meetings of the Scheme Creditors in early October.” To this end, Cape will not be seeking the Court's endorsement of the original timetable on July 27; the company says that after consultation with interested parties, a new Court date will be set.

Cape has much to prove before it can win the trust needed to gain Court validation of this Scheme. During “a period of active consultation,” the company has been lobbying stakeholders and advertising in the national and local press. Meetings with asbestos victims' representatives and solicitors have been held throughout the country. Perhaps Cape executives believe that with all the activity in the foreground, the company's deplorable treatment of asbestos victims will be forgotten? Whilst a form of corprorate amnesia may reassure Cape's current executives, those of us with long memories remember the Hebden Bridge Massacre and the heart-rending documentary: Alice: A Fight for Life. Newcomers to the asbestos issue will recall how the company reneged on a court-approved agreement to compensate South African asbestos claimants. On December 21, 2001, Mr. Justice Wright stayed proceedings in the London High Court in the case of Afrika v. Cape PLC on the understanding that a settlement had been reached in which Cape would pay £21m ($30m) over a ten year period to South African claimants. The original June 30, 2002 deadline for payment of an £11m lump sum was not met; neither was the next deadline (August 20, 2002). At that time, Cape executives acknowledged that the company was unable to fund the settlement and warned that pressure from the plaintiffs could send the company into bankruptcy. It was a further seven months before any money was paid over and by then Cape had managed to whittle down its payment from £21m to £7.5m, thereby achieving a saving of more than 60%. The £13.5 shortfall meant that no funds were held in reserve to pay future asbestos claimants. Why should asbestos victims think that Cape will act any more honorably in the UK then it did in South Africa?

3. Recognition of Asbestos-Related Lung Cancer

Two years after work began on a review of the schedule of prescribed asbestos-related diseases in the UK, the Minister for Employment and Welfare Reform laid before Parliament a report from the Industrial Injuries Advisory Council (IIAC)⁸ which will increase the recognition of asbestos-related lung cancer.⁹ On July 14, 2005, Minister Margaret Hodge told Parliament that she was hopeful that IIAC's recommendations would be implemented as quickly as possible.¹⁰ The main recommendations in the report are that:

• prescribed disease D8 (asbestos-related lung cancer) will be recognized where no asbestosis is present but where there is evidence of substantial occupational exposure in specified categories of at-risk workers such as those engaged in asbestos textile manufacture, asbestos spraying, asbestos insulation and gas mask manufacture. Pleural thickening will be removed from the terms of prescription for lung cancer “as it is unreliable as an indicator of substantial asbestos exposure.” All claimants of PD D8 will be assessed at 100% disablement from the outset.

• a history of substantial asbestos exposure combined with clinical evidence of interstitial pulmonary fibrosis should be the basis for a diagnosis of asbestosis; “a lack of asbestos fibres or bodies should not be used to exclude a diagnosis of asbestosis as asbestos bodies may be absent and fibres not increased above background level in clear cut cases (i.e. these counting techniques have a significant false negative rate).”

The average number of claims and new assessments of primary carcinoma of the lung (PD D8) was 330 and 50 a year respectively over the period 1998-2002. In the past, the Health and Safety Executive suggested that there were two cases of asbestos-related lung cancer for each mesothelioma; this being so, lung cancer claims should number in the thousands. While the new guidelines will bring relief to some asbestos sufferers, others such as stevedores and workers involved in the manufacture or use of asbestos-cement products will remain excluded as will someone such as an asbestos sprayer with lung cancer but no asbestosis who worked for a few years during the 1960s, during which time he could have experienced hundreds of fiber-years of exposure. Professor Douglas Henderson from Flinders University, Australia, who submitted evidence to the enquiry, has mixed feelings about the final IIAC report:

“Obviously this is a significant step forward, but the circumstances for attribution of lung cancer to asbestos under the new regulations still remain fairly restrictive in comparison to the criteria in France, Germany, Denmark, Norway, Sweden and Finland.”

For a more in-depth analysis of the lung cancer issue, Professor Henderson referred to the paper: After Helsinki: a multidisciplinary review of the relationship between asbestos exposure and lung cancer, with emphasis on studies published during 1997-2004.¹¹

For over 20 years, Dr. Nancy Tait from the Occupational and Environmental Diseases Association (OEDA) has been reporting on the difficulties experienced by sufferers of asbestos-related lung cancer to IIAC. In 2002 she authored the report: The Diagnosis of Asbestos-Related Lung Cancer PD D8; since then, she has submitted evidence to IIAC on the criteria used to diagnose asbestos-related lung cancer and other issues. In 2003 The OEDA Review of Prescribed Asbestos-Related Diseases was presented to the Asbestos Sub-Committee of the House of Commons; its Chair, Michael Clapham MP submitted Dr. Tait's paper to IIAC with the Sub-Committee's support. Many of OEDA's recommendations have been incorporated into the new rules including its criticism of fiber counting techniques. In the aftermath of the Minister's announcement of July 14, Dr. Tait pointed out that it is possible for interested parties to make recommendations or comment on the proposed IIAC changes by communicating with Minister Margaret Hodge and/or the IIAC.

4.Tackling UK Asbestos Waste

As of mid-July, 2005, two statutes further restricted the transport and disposal of hazardous waste in the UK. The Hazardous Waste Regulations 2005 (HWR), which put the onus on producers to categorize the waste they generate, are intended to “provide cradle-to-grave documentation for the movement of hazardous waste.” The Waste Acceptance Criteria (WAC) set the limits for hazardous material accepted by landfill sites and define standards and procedures which must be used under the new regime.

Replacing the Special Waste Regulations of 1996, the HWR impose new controls on waste which is: harmful to human health or the environment, or is difficult to handle. Waste producers now have a duty to record and register the types and amounts of hazardous waste they are creating; producers are responsible for ensuring and documenting the appropriate disposal of their waste. One objective of the new regulations is to encourage producers to recycle waste; this option is not available for the disposal of asbestos waste. From July 16, 2005, managers of sites which produce hazardous waste such as asbestos are required to notify the Environment Agency through a registration scheme. Certain categories of premises are exempt, with provisos:

“In accordance with Regulation 12(2), the HWR do not apply to domestic waste except where that waste is: asbestos collected by a contractor. In this case the contractor may have to notify the premises at which s/he is engaged (if those premises are not otherwise exempt); … (other sites which may be exempt include) office premises, to the extent that the hazardous waste arises from the use of the premises as an office; shop premises, to the extent that the hazardous waste arises from the use of the premises as a shop … premises used by a dental, veterinary or medical practice, to the extent that the premises are used for that purpose; and any ship…

Regulation 30(1) sets the qualifying limitation at less than 200 kg in any 12 month period. If you intend to, or do, produce more than 200 kg of hazardous waste on premises in any 12 month period, you must notify those premises.”

Confusion over the operations of the HWR persists. Robert Blackburn, of asbestos consultants Redhill Analysts Ltd., says:

“I am still unclear as to whether a specific property will need to register as a producer of waste where they are having asbestos removed, either as part of day to day maintenance and occupation requirements or as part of capital works such as demolition or refurbishment. I have been told that they do not but I do not understand where this fits in with the derogations, if it does.

On asbestos waste, it is worth considering that a significant proportion is not hazardous waste at all (0.1%ww of asbestos).¹² Due to Health and Safety Executive guidance documents, sheeting and timber used to create the enclosure, overalls, RPE filters, tape etc. are all disposed of together with bricks and building debris frequently found in the enclosure when works commence. This has a significant effect on the volume and weight of waste material produced.

If the 0.1%ww definition was strictly enforced, much of the waste from a typical asbestos removal contract would not need to be disposed of as hazardous waste.”

The Landfill (England and Wales) Regulations 2002, which were enacted in compliance with European Union Directive 1999/31/EC, aim “to prevent, or to reduce as far as possible, the negative environmental effects of landfill.” The phasing-in of new duties has had a major impact on waste regulations and industry practices in the UK and has necessitated:

• the formulation of precise criteria for defining waste;

• the introduction of a uniform waste acceptance procedure and standardized limit values;

• the development of a standardized system for the sampling and analysis of waste.

As of July 14, 2004, the Environment Agency (EA) was required, under the Interim Waste Acceptance Criteria, to end the co-disposal of hazardous and non-hazardous waste on the same landfill site. A spokesperson for the Environment Agency explained:

“After that date, landfill sites had to opt to take only hazardous waste or non-hazardous waste (not both as was allowed before). The Landfill Directive allows, however, for non-hazardous waste landfill sites to create 'separate cells' (often referred to as 'monocells') within the site, which are designed to take 'stable and non-reactive' hazardous wastes such as asbestos.

Asbestos is a hazardous waste which is 'stable and non-reactive', which means that it can only be landfilled in either:

• a hazardous waste landfill site that is licensed to accept asbestos (NB licenses are site specific - a hazardous waste landfill does not have to accept a particular type of waste, the operator chooses which hazardous wastes it wants the site to be licensed to accept), or

• in a mono-cell licensed to accept asbestos, within a non-hazardous landfill site.”

In England and Wales more than five million tonnes of hazardous waste is produced every year, half of which is landfilled. According to the EA there is no “shortage in (asbestos waste) disposal capacity - there are a number of sites/cells licensed for asbestos disposal.” Others disagree:

• a spokesperson for the Asbestos Control and Abatement Division of a UK trade association says that the number of landfill sites which accept asbestos-containing waste has been drastically reduced;¹³

• a waste industry specialist confirms a paucity of asbestos waste landfill sites;

• a technical adviser to a nationwide waste services company says that the amount of asbestos waste officially being landfilled has fallen dramatically since July 2004; the rise in dumping charges has resulted in an increase in illegal fly-tipping.¹⁴

As of July 11, 2005, fewer than 60% (21 out of 36) of the issued permits listed on the EA website for the construction of separate cells for the landfill of stable, non-reactive hazardous waste covered the acceptance of bonded asbestos.¹⁵ In the London area, bonded asbestos waste can be landfilled at two sites: Pinden Quarry, southeast Dartford and North Herts Landfill Site, North Hitchin; other sites which accept bonded asbestos waste from the London area are located in Ardley (Oxfordshire), Ipswich, Swindon and Peterborough.

On July 16, 2005, the Waste Acceptance Criteria (WAC) came into force; under the WAC more stringent sampling, testing and treatment of hazardous waste is required by waste producers and/or landfill operators before waste can be accepted onto landfill sites. Last year, waste industry experts predicted that the total costs of waste disposal would rise from £30-£50 per tonne to £120-£150 per tonne depending on the nature of the treatment required. At a site in Hitchin, North Hertfordshire, the price on July 11, 2005 for disposing of 1 tonne of asbestos cement bonded waste was £118+ VAT;¹⁶ the same day, an Oxfordshire site quoted £108 + VAT. One year ago, the cost of disposing of asbestos waste at the Oxfordshire site was £60-£70 + VAT.

Data on the amount of asbestos-containing waste generated in the UK is elusive but in light of the widescale use of asbestos in the UK prior to 1999, it is likely that the amount of asbestos waste produced annually is substantial. News that sites are being earmarked for asbestos storage or landfill is never welcomed by local people. Plans to construct an asbestos storage site in County Antrim, Northern Ireland are being strongly resisted by residents who were granted leave to apply for a judicial review of the proposal on June 23, 2005. The group, Crumlin Against Asbestos, objects to plans by Eastwood Ltd. to store all asbestos waste in the province at a facility in Crosshill prior to disposal in England.¹⁷ Residents of Drakelow, Derbyshire are objecting to a plan to bury 30,000 tonnes of asbestos in a concrete vault at the site of the former Drakelow Power Station. Derbyshire County Council and the MP for South Derbyshire, Mark Todd, support the planned redevelopment of this 600 acre site; the Environment Agency has authorized the site to accept asbestos waste. With diminishing landfill capacity, rising public concern over asbestos and increasing regulation of hazardous waste, it is urgent that a new method for disposing of asbestos waste is found.

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¹ EDM 233: Action to Achieve a Global Asbestos-Free Environment. Website: http://edmi.parliament.uk/

² The use and marketing of crocidolite had been banned in 1984.

³ The breakdown of the 795 asbestos deaths is: 259 from cancer of the peritoneum, 210 from cancer of the pleura, 196 from lung cancer and 130 from other causes.

⁴ Parliamentary Adjournment Debate June 28, 2005. Hansards website: http://www.publications.parliament.uk/pa/cm200506/cmhansrd/cm050628/halltext/50628h05.htm

⁵ The Forum was launched in July, 2005 “to provide an opportunity for asbestos victims support groups to speak with one voice on issues that affect asbestos victims.” The founding members of the Forum include asbestos victims' support groups from: Bradford, Cheshire, Derbyshire, the North East, the Ridings and Sheffield.

⁶ EDM 536: Cape plc Proposed UK Asbestos Victims Fund. Website: http://edmi.parliament.uk/

⁷ w/c: week commencing.

⁸ The Industrial Injuries Disablement Benefit (IIDB) Scheme provides non-contributory, no-fault benefits for disablement because of accidents or prescribed diseases that arise during employment. It is tax-free and is administered by the Department of Work and Pensions (DWP). Other DWP schemes under which asbestos sufferers might claim are: the Workers' Compensation (Supplementation) Act 1948 Scheme and the Pneumoconiosis, Byssinosis and Miscellaneous Diseases Scheme. Some asbestos-related disease sufferers may also qualify for a lump sum payment under the Pneumoconiosis (Workers' Compensation) Act 1979 Scheme.

⁹ Asbestos-related disease. Report by the Industrial Injuries Advisory Council in accordance with Section 171 of the Social Security Administration Act 1992 reviewing the prescription of asbestos-related diseases. CM 6553. July 2005. http://www.iiac.org.uk

¹⁰ As administrative work is required to implement these recommendations, it is likely to be some months before the revised IIAC protocol is enacted; one observer was hopeful that it they could be in place by Autumn 2005.

¹¹ This paper was published in the journal Pathology (December 2004) 36(6), pages 517-550.

¹² 0.1%ww means 0.1% by weight of asbestos against the weight of the other materials; specifically not volume.

¹³ Hazardous Waste Landfill Sites. ACAD article.

¹⁴ According to the EA, someone fly-tips in England and Wales every 35 seconds; this equates to 70,000 incidents a month.

¹⁵http://www.environment-agency.gov.uk/business/444217/444663/landfill/?version=1&lang=_e

¹⁶ VAT: Value Added Tax currently adds 17 % to the total bill.

¹⁷ On July 18, 2005 the Secretary of State for Northern Ireland (NI) discussed the disposal of asbestos waste in NI in a Written Answer to the House of Commons; she said there are three NI facilities licensed to receive asbestos waste: one landfill site and two waste transfer stations. The Environment and Heritage Service of the Department of the Environment is investigating “a small number of isolated incidents of illegal dumping of asbestos.”

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Compiled by Laurie Kazan-Allen
ÓJerome Consultants