Journal of Ban Asbestos Network of India (BANI). Asbestos Free India campaign of BANI is inspired by trade union movement and right to health campaign. BANI has been working since 2000. It works with peoples movements, doctors, researchers and activists besides trade unions, human rights, environmental, consumer and public health groups. BANI demands criminal liability for companies and medico-legal remedy for victims. For Details: email@example.com
Thursday, May 24, 2012
Shri Naveen Patnaik
Government of Odisha
Through Chief Secretary, Government of Odisha
Subject-Stop Asbestos Cement Plant in Bargarh, Odisha
This is to draw your urgent attention towards the villagers’ protest against the proposed hazardous asbestos cement roofing factory at Naagaon-Lebidi villages, Sohella Block, Bargarh district, Odisha. The company M/s Viswakarma Roofings Ltd. intends to establish 150,000 Tonnes Per Annum of Asbestos Cement Sheets Manufacturing Project at Bargarh in state of Odisha. The proposal is to establish 0.15 MTPA Asbestos Cement Sheet Plant. The site includes Nuagan, Kendupali, Lebidi Mauza and several other villages.
I am an environmental health researcher. I have worked with national and international organizations working on environmental and occupational health. I am an applicant in the Supreme Court in the hazardous wastes/shipbreaking case and against asbestos fibers in the National Human Rights Commission, New Delhi.
I am writing on behalf of the New Delhi based Ban Asbestos Network of India (BANI) which has been working to speared awareness about the hazardous impact of asbestos fibers since 2002 has learnt that several hundreds of people, including women and children, participated in protest demonstrations against the proposed Asbestos Cement Sheet factory on May 22, 2012.
I have come to know villagers are resisting the efforts of the Vishwakarma Roofings Ltd. The ongoing protests commenced from the date of public hearing in September, 2011. The attached minutes of the public hearing reveal the same.
It is noteworthy that a member of BANI, ToxicsWatch Alliance (TWA) is pursuing a case against asbestos fibers in the NHRC.
Both BANI and TWA express their support for the efforts of Jan Paribesh Suraksha Parishad (JPSP) to resist the plan to set up hazardous chrysotile asbestos (white asbestos) plant in Bargarh.
It has reliably been learnt that villagers will not allow the setting up of the asbestos cement sheet factory at any cost.
I submit that villagers are quite angry when they witnessed the construction work for the hazardous asbestos factory in the vicinity of more than 10 villages within a 2 km radius, including water bodies, schools, agricultural fields and a government food warehouse.
I submit that there was a rally against the proposed toxic plant that commenced from the National Highway 6, Dus Mile Chowk, 7 Km from Sohela Block, Bargarh district and culminated at the project site.
I submit that JPSP has informed me about the protest against the disastrous consequences for the villagers of Naagaon-Lebidi, Sohela Block, Bargarh district, Odisha.
I wish to inform you that some 55 countries have already banned asbestos of all kinds including white asbestos that is proposed to be used for manufacturing asbestos fiber based roofs. There is a compelling logic to initiate the process of banning asbestos manufacturing, trade and use in Odisha as well.
I submit that the State Government ought to take note of ten crucial national and international developments with regard to hazards from asbestos of all kinds including white asbestos with documentary proof:
1) Judgment of the Italian Criminal Court dated February 12, 2012 convicting owners of an asbestos company
2) Vision Statement on Environment and Human Health of Ministry of Environment & Forests
3) Notice of the National Human Rights Commission dated July 6, 2011 sent to Chief Secretary, Odisha Government
4) New Delhi Declaration Seeking Elimination of all forms of Asbestos including White Asbestos from India, March 2011
5) Government of India’s decision at UN’s 5th Conference of the Parties (COP5) to the UN’s Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade held in Geneva during June 20-24, 2011 wherein it agreed to the inclusion of chrysotile asbestos (white asbestos) in the list of hazardous chemicals paving the way for its ‘phase out’
6) Order of the Kerala Human Rights Commission dated January 31, 2009 on ‘asbestos roofs’,
7) Health Management Plan for Mesothalmia, Lung cancer and Asbestosis related problems in asbestos industries (Term of Reference of Experts Appraisal Committee, Industrial Projects),
8) Factsheet of World Health Organisation (WHO) and ILO Resolution
9) Union Ministry of Labour's Concept Paper on Plan to Ban Asbestos
10) NHRC Member's concern for use of carcinogenic asbestos roof by Union Rural Development Ministry in Indira Awas Yojna
I submit that these developments will help comprehend the matter of human rights violations from the proposed hazardous white asbestos fiber cement sheet projects in Bargarh.
I submit that European asbestos billionaires Mr Stephan Schmidheiny and Mr Baron Luis de Cartier have been fined and sentenced to 16 years gaol by an Italian criminal court for deliberately failing to warn workers, families and residents about the dangers of asbestos. Reference:http://www.abc.net.au/news/2012-02-14/billionaires-sentenced-to-16-years-gaol-for/3828540 (1)
I wish to draw your attention towards the Union Environment Ministry’s 19 page Vision Statement on Environment and Human Health (Para 4.3.1) on page 12 which reads: “Alternatives to asbestos may be used to the extent possible and use of asbestos may be phased out”. Reference: Environment Ministry’s website: moef.nic.in/divisions/cpoll/envhealth/visenvhealth.pdf. (2)
I submit that the National Human Rights Commission has taken cognizance of various incurable diseases caused by white asbestos and the request for grant of a compensation package for present and future victims of Asbestos diseases. The Commission has issued notice to Chief Secretary, Government of Bihar. NHRC Notice attached. (3)
I submit that the Annual Report of NHRC 2003-2004 refers to a Report entitled “Asbestos – Health and Environment – an in-depth Study “submitted by the Institute of Public Health Engineers, India. The study underlines that safe and controlled use of asbestos is not possible. I submit that NHRC has passed an order in Case No: 693/30/97-98 recommending that the asbestos sheets roofing be replaced with roofing made up of some other material that would not be harmful.
I submit that the New Delhi Declaration Seeking Elimination of all forms of Asbestos including Chrysotile from India was adopted and endorsed by world renowned eminent scientists and doctors in March 24, 2011. The declaration is attached. (4)
I wish to inform you that the Government of India’s delegation at the UN Conference in Geneva agreed to the listing of chrysotile asbestos in the Annex III of the Rotterdam Convention which is the Prior Informed Consent (PIC) list of hazardous substances on June 22, 2011. The turnaround came at a contact group meeting which was set up for discussion on chrysotile asbestos also known as white asbestos as they member groups of the convention could not agree upon a consensus. However, when India announced its stand it was applauded and it received a standing ovation at the plenary. The UN’s Chemical Review Committee had recommended the listing of white asbestos on the grounds of WHO findings that asbestos was a hazardous substance harmful to human health and environment; it had also stated that PIC was especially important for developing countries which have weak legal and institutional structures for addressing hazardous materials. The deliberations are available at www.pic.int (5)
I submit that Justice N Dhinakar, the Kerala State Human Rights Commission (KSHRC) made three recommendations banning use of asbestos roofs in its order dated January 31, 2009. The recommendations are: “
a) The State Government will replace asbestos roofs of all school buildings under its control with country tiles in a phased manner.
b) The Government will take steps to see that the schools run under the private management also replace the asbestos roofs with country tiles by fixing a time frame.
c) The Government should see that in future no new school is allowed to commence its functions with asbestos roofs.”(6)
I submit that these recommendations are relevant for Odisha as well and it is natural to expect that the State Human Rights Commission will also take cognisance of it.
It is germane to note that Terms of Reference (TOR) that was awarded by the Experts Appraisal Committee, Industrial Project, Union Ministry of Environment & Forests to the project proponents for white asbestos based roofing factories state that they should prepare a “Health Management Plan for Mesothalmia, Lung cancer and Asbestosis related problems in asbestos industries.” Till date this has not been done. (7)
This underlines that the opposition of the villagers is quite justified on the ground that the proposed hazardous white asbestos fiber cement sheet project causes incurable fatal diseases.
I wish to inform you that the World Health Organization (WHO) re-iterates that the most efficient way to eliminate asbestos-related diseases is to stop the use of all types of asbestos and specifically states that its strategy is particularly targeted at countries still using chrysotile asbestos. The factsheet notes that “more than 107 000 people die each year from asbestos-related lung cancer, mesothelioma and asbestosis resulting from occupational exposure.” The relevant factsheet is asbestos available at: http://www.who.int/mediacentre/factsheets/fs343/en/index.html The ILO resolution seeking elimination of chrysotile asbestos is attached. (8)
It is not surprising that "The Government of India is considering the ban on use of chrysotile asbestos in India to protect the workers and the general population against primary and secondary exposure to Chrysotile form of Asbestos." It has noted that "Asbestosis is yet another occupational disease of the Lungs which is on an increase under similar circumstances warranting concerted efforts of all stake holders to evolve strategies to curb this menace". A concept paper by Union Ministry of Labour revealed this at the two-day 5th India-EU Joint Seminar on “Occupational Safety and Health” on 19th and 20th September, 2011. Reference: http://www.labour.nic.in/lc/Background%20note.pdf (9)
I wish to draw your attention towards the fact that asbestos cement based building materials are being used in the Union Rural Development Ministry’s Indira Awas Yojna, this will have grave public health consequences. It is sad that central government’s definition of roofing material includes asbestos cement sheet along with Reinforced Brick Concrete and timber etc as per Union Ministry of Statistics and Programme Implementation. I submit that unmindful of the impending health crisis, the asbestos cement manufacturers are celebrating thrust given by the central government on rural housing through Indira Awaas Yojana because asbestos cement product sector derives sizeable portion of its demand from rural housing sector and remaining demand from industrial sheds. Central government’s Rs 10, 000 crore worth annual housing flagship scheme, Indira Awaas Yojana endangers the rural poor as its is using carcinogenic asbestos sheets to keep the cost below the ceiling of Rs 45,000 per house under the scheme. The National Human Rights Commission member, Shri Satyabrata Pal, a retired 1972 batch IFS officer has raised questions on the hazards as per a news report (Country’s flagship housing scheme turning out to be a debt trap, Iftikhar Gilani, Dec 26, 2011, DNA). (10)
Your immediate intervention can stop the crisis from assuming serious proportion.
It is due these concerns that asbestos of all kinds is banned in 55 countries. In India, mining of all kinds of asbestos is technically banned too besides trade in asbestos waste but its trade, manufacturing and use is yet to be banned. A considered step in Odisha would pave the way for all the states to follow.
It is deeply saddening to note that despite bitter opposition from villagers, their views and concerns are being ignored by the State Pollution Control Board which is to blatantly disregarding all the seven issues raised above including the Vision Statement on Environment and Human Health of the Union Environment Ministry with regard to asbestos.
I wish to inform you that villagers of Bargarh will make any sacrifice to stop the killer asbestos plant amidst their locality, which is akin to a ticking time bomb. In the light of the above referenced facts and the Vision Statement on Environment and Human Health of Union Environment ministry and NHRC notice in particular, we request you to put a moratorium on white asbestos based industrial projects in Odisha to safeguard the human rights of present future generations because asbestos fibers are lethal through its life cycle and even after its end of life. This action will enhance the prestige of the Commission and the State.
I wish to inform you that villagers of Chainpur-Bishunpur in Muzaffarpur, Bihar have stopped the asbestos plant. I submit that asbestos danger is lurking for the villagers of Bargarh and the State Government can set a healthy precedent by stopping it.
I can share all the relevant reference documents at the earliest to apprise you of the hazardous environment that is emerging due to the setting up of such universally established toxic plants that poses indiscriminate threat to residents of these villages.
Ban Asbestos Network of India (BANI)
ToxicsWatch Alliance (TWA), Member, BANI
Phone: +91-11-2651781, Fax: +91-11-26517814
Web: banasbestosindia.blogspot.com, toxiscwatch.blogspot.com
Union Finance Minister, Government of India
Union Health Minister, Government of India
Union Commerce Minister, Government of India
Secretary, Union Ministry of Labour
Secretary, Union Ministry of Environment & Forests
Smt. Mira Mehrishi, Additional Secretary, Union Ministry of Environment & Forests
Chairperson, Odisha State Pollution Control Board
District Magistrate, Bargarh, Odisha
Superintendent of Police, Bargarh, Odisha
Shri Amitabh Mitra, Jan Paribesh Suraksha Parishad (JPSP), Bargarh, Odisha
Wednesday, May 23, 2012
International Expert Conference on Asbestos in Kiev demands phase-out of asbestos production and use in Ukraine
The conference was organized together with NGO MAMA-86 and was hosted in the Institute for Occupational Health of Ukraine on the 29th of March 2012.
In the opening session, among other welcome speeches, representatives from the Delegation of the European Union and the Embassy of Sweden highlighted the importance of the issue and shared the lessons learned in the EU, concluding that EU countries should have acted earlier to impose a ban of asbestos and that the cost of inaction and suffering of people are enormous.
During the session "Rotterdam Convention as tool for chemical management in Ukraine" Alexander Mangwiro from the Secretariat of the Rotterdam Convention explained the prior informed consent and informed about the fact that listing chrysotile asbestos under Annex III of the Rotterdam Convention does not imply a ban, but only is an agreement to exchange information. However, this is often misunderstood by representatives from EECCA region governments and agencies. Ukrainian representatives of the Ministry of Ecology and Natural Resources as well as from the Ministry of Health said that in their interpretation, the listing of chrysotile asbestos on the PIC list means a ban, and this explained why Ukraine opposed the listing at the last Conference of the Parties.
The session "Use and production of chrysotile asbestos in Ukraine" provided information about the nature and scale of asbestos production and use in Ukraine, EECCA region and the lessons learned in the EU. WECF partners MAMA-86 and BIOM presented the findings of their inventories on asbestos in Ukraine (download here) and Kyrgyzstan (download here). The Ukrainian Chrysotile Association gave figures about the Ukrainian asbestos production, and the NGO EcoPravo-Khariv gave insights on the legislative measures in Ukraine. WECF presented the lessons learned and the high cost of inaction in the EU.
Three scientists of the Ukrainian Institute for Occupational Health presented their findings in the session "Asbestos and asbestos related diseases". Their findings were questioned by the following speaker Dr. Rokho Kim from WHO Regional Office for Europe, showing the scientific findings of health studies of WHO, IARC and ILO, as well as from other scientists. Asbestos related diseases are the most studied topic in epidemiology worldwide, proving that all types of asbestos cause various forms of cancer, mesothelioma and asbestosis, that there is no safety threshold level, and the best way to eliminate asbestos related diseases is to ban all uses of asbestos. It is strange that not one case of mesothelioma cancer in Ukraine as been traced back to asbestos exposure, whereas in all countries of the world, the main cause of this cancer is exposure to (chrysotile) asbestos. One of the conference participants, a lawyer, presented one of his cases, of a worker from the port area on the Black Sea, who is dying of mesothelioma and is suing his employer on this issue. There are apparently hundreds of cases of mesothelioma in Ukraine, except that they are not being related to asbestos exposure.
Download the presentation of Dr. Rokho Kim here
The conference closed with the development of national recommendations to the Government of Ukraine and a call for action that includes the following points:
Apply the principle of substitution, and actively promote development and use of safer substitutes to asbestos. Any new substitutes being developed should also be tested on their health effects according to the national and international screening processes.
Develop legislation to improve the labour conditions of workers exposed to asbestos, as well as the general public:
Protect workers and citizens from exposure to asbestos at the highest level, as recommended by WHO and ILO.
Assure safe handling of asbestos containing waste during the asbestos removal process.
Apply the principle of “right to know“ and promote awareness raising on the potent carcenogenic features of asbestos. Provide for transparency through access to information and raising awareness on all aspects of the asbestos problem. These activities should be conducted in accordance with the principles of the Aarhus Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters:
Inform workers and users on the need of highest protective gear including indepedent oxygen supply when dealing with asbestos and asbestos waste.
Support non governmental organisations (NGOs), in education, awareness raising and information provision on harmful substances and the role of chemical conventions (Rotterdam, Stockholm, Basel conventions) in assuring elimination of harmful substances where appropriate with support of scientific experts.
Contribute to creation in higher educational establishments of new specialities for preparation of specialists in area of chemical safety.
Provide information to the population on the dangers of asbestos, in addition to other harmful subtstances, including information campaigns, warning labels on products etc.
Organize an annual national workshop on chemicals safety.
Request from the chrysotile asbestos industry a comprehensive report on their risk management systems in place comprising measures for protection of the health of workers and the residents living in the vicinityof the asbestos plants. The report and its review should be made publicly available.
Establishment of a national programme for elimination of asbestos-related diseases by 2015, according to the recommendations of the WHOand the ILO and taking into account the specific situations of the country. This includes among others:
Development of a national asbestos profile in Ukraine.
Establish a working group on identification of the most vulnerable groups of the population and asbestos waste sites.
We recommend the Government to support exchange of independent research and international scientific experience including reporting on the potential health impacts of asbestos exposure in the Ukraine in cooperation with IARC, ILO and WHO.
We recommend the Government to take immediate provide information about adequate risk management measures to everybody. Listing of chrysotile asbestos in Annex III will assure that importing countries will have this information available.
We suggest that the Government considers the suitability of including chrysotile asbestos in Annex III of the Rotterdam Convention taking into account sound scientific information, such as from CRC. Ukraine should play a leading role in the process of listing of chrysotile asbestos.
For more information contact: Alexandra.firstname.lastname@example.org and Olga Tsygulova, email@example.com
Rally & protests against proposed asbestos cement roofing sheet factory at Naagaon-Lebidi, Sohella Block, Bargarh district, Odisha
About 500 people, including women and children, participated in protest demonstrations against the proposed Asbestos Cement Sheet factory at Naagaon-Lebidi villages of Sohella Block in Bargarh district of Odisha, India.
The people living in the area have been resisting the company (Vishwakarma Roofings) since the very beginning day of the Environment Public Hearing day last year September. Initially as more than 68 people from the 80 participants resisted and went against the company in the hearing itself. The company representative said that they would not proceed with their plan to set up an asbestos cement sheet factory, as the people are against asbestos. The project remained dormant for about half a year, but last month, the company started to put up fencing and commence some construction work. Seeing the progress, people of the nearby villages were getting angry at the district administration - how they are allowing such a nuisance and public health hazardous company in the populated area, where there are more than 10 villages within a 2 kilometer radius, including water bodies, schools, agricultural fields and a Central Government food Warehouse.
So people called for a demonstration and agitation against the company's proceedings and today they gathered by the side of the National Highway 6, at Dus Mile Chowk, about 7 km.s away from Sohela Block. After holding a public meeting, they rallied against the company, walking to the project site, where the company has procured about 18 acres of land and has started its work. The people took down all the wire, poles and burnt a temporary hut, made up of wood. They also warned the company that any future activity to construct the asbestos factory will face the same consequence; they will be shattered to ground.
In the mean time the company has been spending a huge amount of to try to buy support.
The resistance to the asbestos company is on rise in the entire area, as more and more people are coming to know about the mass hazardous subject.
The company has an initial budget of INR 30,00,00,000/- and was supposed to expand after its initial startup. It already has 3 factories and has been importing asbestos from Canada to those factories in other parts of the nation.
It is observed that already there are cancer related deaths increasing across the region due to increased pesticide usage for the hybrid paddy crops and now if the asbestos factory goes ahead, it will definitely increase the numbers of mesothelioma and asbestosis cases.
Friday, May 11, 2012
At one point earlier this year, 15 of the 100 most expensive keyword search phrases for click-through ads on Google contained the word "mesothelioma", the deadly cancer caused by asbestos exposure. The single most expensive phrase, online marketing firm SpyFu reported, was "Florida mesothelioma lawyers," at $177.74 per click.
The hard sell reflects a troubling truth: Half a century after the first wave of lawsuits were filed for illnesses linked to exposure to asbestos and 40 years after new regulation sharply curtailed use of the insulating and fire-resistant mineral, the asbestos-litigation business is booming.
Some of the country's biggest and best-known law firms -- many of them handling asbestos cases almost exclusively -- say the number of lawsuits filed annually, after falling off from a peak, has picked up in recent years. More important, they say, is that payouts for plaintiffs who win their cases have soared.
"It's easy to see why they're buying time on CNN and the like. All you need to get is a couple of claims in to make that commercial buy worth the money," says Marc Mayerson, a litigator with the Orrick law firm in Washington and a professor of insurance law at George Washington University, who has represented defendants in asbestos-related cases since the 1980s.
No central registry keeps track of asbestos lawsuits filed yearly or their outcomes. A tabulation of jury verdicts and settlements, based on an average of all asbestos-related lawsuits reported in Westlaw Journal Asbestos, a Thomson Reuters publication, found that the average award was $6.3-million in 2009, $17.6-million in 2010 and $10.5-million in 2011 -- amounts much greater than what lawyers say was the norm more than a decade earlier.
Clearly, mesothelioma and other asbestos-related payouts persist at levels companies and their insurers never expected. Insurers have been adding hundreds of millions of dollars to their asbestos-claim reserves. Travelers Cos, in its annual report for 2011, echoed its peers when it cited a "high degree of uncertainty with respect to future exposure from asbestos claims".
Meanwhile, the dozens of trusts set up by companies forced into bankruptcy by asbestos liabilities are facing such heavy claims that many are paying only a few cents on the dollar. Some have had to suspend settlements. That has created inequality among victims.
Some doctors and lawyers attribute the recent rise in asbestos suits to the unexpected emergence of "asbestos wives and daughters," women exposed to the mineral by male relatives who worked in asbestos-heavy industries.
David Sugarbaker, a thoracic surgeon at Brigham & Women's Hospital in Boston who is highly regarded among mesothelioma patient groups, says he's been seeing more women among new patients every year, but "nobody has been able to quite pin it down".
No hard data show that the incidence of mesothelioma among women has risen significantly. Indeed, the incidence of the disease overall remained largely flat at about 1 person per 100 000 from 1980 to 2008, while the rate for women held steady at roughly one-sixth that of men, according to the National Cancer Institute.
No matter who is doing the suing, lawyers say plaintiffs are increasingly targeting a new set of deep-pocketed "tertiary defendants" -- companies that used asbestos products manufactured by others or were otherwise indirectly linked to asbestos. Such companies can now "find themselves in the midst of a lawsuit where the jury verdicts in the plaintiff-favorable jurisdictions are probably averaging $15 million to $25 million each," Orrick's Mayerson says.
Nearly everyone involved in asbestos litigation agrees on one dismaying fact: Most plaintiffs today are sick.
About a decade ago, "unimpaired" plaintiffs -- people who had some asbestos exposure but weren't sick and had no evidence they were getting sick -- accounted for "literally hundreds of thousands of claims," says Mike Angelides, managing partner of the Simmons Law Firm, which by its own estimate accounts for 20% of all asbestos-related lawsuits filed in the US every year.
Matt Bergman, a Seattle attorney who specializes in asbestos litigation, says the number of lawsuits probably peaked in 2005, when he estimates 16 000 cases were filed, most from people without any illness.
As courts began to take a dim view of such suits, lawyers focused on sick plaintiffs. Now, Bergman says, only about 2 000 new cases are filed each year, most of them to do with mesothelioma. "I think the system works best when the people who are bringing the cases are the people suffering the most," he says.
The Institute for Legal Reform, an arm of the US Chamber of Commerce that has been a vehement critic of asbestos litigation, recognizes the shift. In recent years, "there were more cases with more people that were more severely impaired, and the numbers on those claims went up," says Lisa Rickard, president of the institute.
Angelides says his firm estimates the number of new cases filed a year at around 1 800, way down from the peak but up from more recent years. "Everybody wishes these claims would go down," he says, "but it's not time yet."
Mesothelioma is a particularly lethal cancer. It arises in the delicate tissue that lines body cavities, most often around the lungs, but also in the abdomen and elsewhere.
Years of research have shown that exposure to asbestos -- defined roughly as two weeks of constant contact, usually in the air in a workplace -- is a primary cause of mesothelioma. (Exposure also causes asbestosis, a chronic, potentially life-shortening lung disease.)
Once exposed, a person has a 1-in-20 chance of developing mesothelioma. The average patient is dead within two years of diagnosis, and more than 90% are dead within five years, according to the National Cancer Institute.
The reason people who were exposed in the 1960s and 1970s are still being diagnosed is mesothelioma's long latency period -- the time between exposure and manifestation of disease -- of between 30 and 50 years. Thus people who worked in tainted industrial settings in the 1960s are still getting ill, as are some family members.
Heather Von St. James, a resident of St. Paul, Minnesota, in her early 40s, is an asbestos daughter.
Many nights while growing up, she says, she greeted her father with a hug at the door when he returned home from his job sanding drywall, a fine white dust powdering his jacket. She often put on that jacket before running outside to feed her pet rabbits.
In 2005, just after the birth of her daughter, she was diagnosed with mesothelioma. She immediately remembered those lawyers' TV ads she had seen late at night. "I called them at 1 o'clock in the morning when I got the diagnosis because I thought, 'I've got nothing to lose'," she says.
To fight her disease, she had to have a lung removed. That left her chronically weak and easily fatigued, unable to care for her daughter or continue working as a hair stylist and salon owner. She considers herself lucky, compared to other mesothelioma victims, but hesitates to describe herself as "cured."
The court that heard her lawsuit estimated that the disability caused by her mesothelioma cost her more than $5-million in lost lifetime earnings. "We didn't get $5-million. It can never replace what I lost," says St. James, who is bound by confidentiality agreements not to disclose whom she sued or the precise amount she received. Court records indicate that 3M Co was a defendant -- not one closely associated with the decades-long morass of asbestos litigation.
3M did not respond to a request for comment.
LIKE "DEATH AND TAXES"
Asbestos -- actually a family of half a dozen fibrous minerals -- has been valued since Roman times for its heat-resistant properties. For much of the 20th century it pervaded construction sites, ship and rail yards, and many industrial settings. Canada, Russia and South Africa have been major producers, as was the US.
Concerns about the health risks of asbestos exposure were raised as early as the 1920s. In a September 1958 memo that plaintiffs lawyers are wont to cite, a National Gypsum executive wrote: "We know that you will never lose sight of the fact that perhaps the greatest hazard in your plant is with men handling asbestos. Because just as certain as death and taxes is the fact that if you inhale asbestos dust you get asbestosis."
The first asbestos-related personal-injury claims popped up in federal courts in the 1960s, but asbestos use continued. According to the US Geological Survey, consumption of asbestos in the US peaked in 1973 at 803 000 tons, out of global production of around 4.2-million tons.
Within a few years, mounting litigation, as well as scientific evidence linking asbestos to disease, prompted new government and industry regulations on safe handling and use of the mineral. Since 1973, according to the the US Geological Survey, US consumption has fallen 99.9%, though global use is down only around 50%.
In the ensuing decades, asbestos litigation overwhelmed one company after another. By government estimates, about 100 companies have been forced into bankruptcy proceedings because of asbestos liabilities -- including construction-materials and industrial heavyweights such as Johns Manville (now a part of Berkshire Hathaway), USG and Owens Corning.
The US Bankruptcy Code, amended specifically for the purpose, allows a company to put current and future asbestos liabilities in a trust, fund the trust with certain assets, and walk away to start fresh. Trust administrators determine whether a claim is valid and pay out accordingly. Their decisions can be appealed, but generally, trust claims are more open-and-shut than court litigation.
Each trust values claims differently. The Johns Manville trust values mesothelioma at $350 000, while the Owens Corning trust values it at $215 000, says Steve Kazan, managing principal at Kazan, McClain, Lyons, Greenwood & Harley in Illinois, who litigated his first asbestos case in 1974 and has kept at it since. None of the trusts, lawyers say, come close to paying what the courts do.
The problem for the trusts -- and for claimants -- is that as claims persist, many of the trusts have to pay out cents on the dollar for each valid claim in order to save for future claims.
Take the example of the Johns Manville trust. In the 23 years since it started, the Manville Personal Injury Settlement Trust has received more than 878 000 claims -- 10 times the number initially predicted -- and made payments nearing $4.23-billion. The Manville trust's most recent filing with the US Bankruptcy Court in Manhattan shows claims rose 57% in the first nine months of 2011 from a year earlier, to 27 300. Over that time the trust's assets fell more than 12%, to $925.6-million.
As a result, the trust is now paying out approved claims at a rate of 7.5c on the dollar. A person with an approved $100 000 claim would receive $7 500.
The USG trust cut its payout rate to 35c on the dollar in April 2010 and lowered it again to 30c in November 2010. The NGC Bodily Injury Trust, which handles National Gypsum claims, warned last November that claim filings were running much higher than expected and cut payments to 18c on the dollar.
Last January, the C.E. Thurston & Sons Asbestos Trust suspended all new settlement offers while it recomputed how much it can afford to pay while retaining enough for the future, the trust said on its website.
Reuters sought comment by phone or email from trustees or lawyers for half a dozen asbestos trusts; none responded.
THE INSURERS PAY
Unlike the trusts, the insurance industry thought it had largely solved its asbestos problem through big increases to reserves 10 years ago. It misjudged. "All these insurance companies have dedicated asbestos units, and they're staffed and they're busy," says Larry Reback, an insurance broker with Integro in San Francisco.
Last year, when insurers AIG and The Hartford announced additions of $1.3-billion and $290-million, respectively, to their asbestos reserves, the companies blamed tertiary defendants that never anticipated litigation and now are being sued. AIG and Hartford have repeatedly declined to comment on the additions to their reserves.
Major oil companies are on the list, as people who were working decades ago challenge what the companies knew about asbestos safety at the time. Automakers are being hit with asbestos lawsuits, too, largely related to the asbestos lining in many vehicle brakes. Just this month a federal appellate court said lawsuits could proceed against drugmaker Pfizer Inc over asbestos-linked materials a subsidiary made a generation ago. "We strongly dispute" those lawsuits, Pfizer said.
In February, Travelers said it put $175-million into its asbestos-claim reserves in 2011, up 25% from 2010, citing more litigation and larger payouts because of those lawsuits. While announcing an increase in its own reserves, MetLife said in August that it saw asbestos-related claims rise 11% in the first half of the year after dropping steadily from 2003 through 2010.
In 2009, A.M. Best, the major rater of insurers, raised its estimate of future industry asbestos liabilities to $75-billion from $65-billion. The number may rise again in the next year, mainly because of mesothelioma claims, says Brian O'Larte, an A.M. Best analyst in New Jersey. All told, by its assessment, the industry is about 4% underfunded for the $75-billion in liabilities it faces.
Insurers keep assuming, mistakenly, that liabilities will taper, O'Larte says. "Every time they do a ground-up study, they say, 'We got it right this time'." he says.
"We don't assume that."
Reuters, 11th May 2012
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