The Wheels of Justice
When it comes to asbestos, the dog days of Summer (2009) bring no respite to asbestos defendants whether they are negligent corporations or businessmen whose operations contributed to hazardous occupational or community exposures. During the Summer months, major developments have taken place in a slew of countries which illustrate that while the wheels of justice may grind exceedingly slowly, the net is closing around those who blithely engaged in the commercial exploitation of asbestos regardless of the human and environmental consequences of so doing. There can be little doubt that hard-pressed governments, now being forced to compensate increasing numbers of asbestos victims, will be looking at ways of tackling their asbestos problems, whether it be by banning future use, punishing guilty defendants or demanding compensation from tortious producers. A chronological rollcall of the worldwide developments is informative.
Philippines: A civic resolution ordered that asbestos pollution caused by the operations of the Lepanto Consolidated Mining Corporation in the Sitio Sapid region be cleaned-up; six truckloads of asbestos waste and construction debris which the company had secretly dumped on this site in 2007 must be removed under a carefully controlled toxic waste plan. The company is facing administrative and criminal charges for the improper handling of the toxic waste. 1
Argentina: On June 24, it was reported that former workers from a DuPont Company factory in Mercedes, Argentina are suing the company in Delaware for negligent asbestos exposures which are alleged to have taken place in Argentina. 2
Japan: On June 29, figures released by the Labor Ministry showed that in the latest fiscal year (2008) 1,063 asbestos sufferers were awarded workers' compensation payouts; although, this figure was a 6.1% increase on 2007, it was lower than the record of 1,784 which was reached in 2006. Most of the victims were from the construction and manufacturing sectors.3
Philippines: The Ban Asbestos Act of 2009, House Bill 6544, was tabled by Representative Raymond C. Mendoza in the Congress of the Philippines at the beginning of July. The bill calls for a ban on the import, manufacture, processing, use and distribution of asbestos as well as other measures to safeguard occupational and public health.4
United Arab Emirates: In July 2009, an asbestos focus group was convened by Buildsafe UAE, a non-profit health and safety organization, to produce construction industry guidelines for dealing with asbestos-containing materials.5
United States: An announcement was made on July 2 that the owner of the largest chrysotile mine and mill in the U.S. will remediate environmental pollution caused by its operations at the Vermont Asbestos Group Mine. Two massive piles of asbestos-containing tailings are contaminating the soil, downstream surface waters, local wetlands and waterways. G-I Holdings Inc. has agreed to a multimillion dollar 8-year program to make the site safe. The company will also reimburse the Environmental Protection Agency and the State of Vermont for costs incurred arising from this contamination and pay its share of the cleanup costs for 9 other U.S. sites. 6
Japan: Judge Haruhiko Sakae of the Yokohama District Court (July 6) ordered the Government to pay 76.84 million yen (~US$810,000) for the mesothelioma death at age 51 of Hitoshi Taima, a worker at the U.S. Navy's Yokosuka base. Taima, who was employed from 1977-1995 by the Japanese Government, was exposed to asbestos whilst working as a mechanic. Between 1999 and 2003, 40 claimants who contracted asbestos-related diseases through occupational exposures at the base received compensation as a result of judicial rulings and negotiated settlements.7
Japan: On July 8, the Chubu Electric Power Company was ordered to pay 30 million yen (US$317,000) for the mesothelioma death of 67-year old Kenji Fujiwara, a former electrician who had worked for the company from 1958-1999. As the ruling highlighted the defendant's obligation to protect workers who do not directly handle asbestos, it is significant for others with similar exposures.8
Korea: At a cabinet meeting on July 21, revisions to the Industrial Safety Act, which would improve occupational protection from asbestos during construction and demolition work, were considered. The authorities have been under constant pressure after news was released in April of asbestos pollution at industrial sites and in consumer products, including drugs and baby powder.9
Brazil: On July 22, the Brazilian Ministry of Health prohibited the use of asbestos in all its buildings; this follows the previous adoption by the Environment Ministry of an asbestos ban throughout its department. Several states have now banned the use of asbestos in Brazil although the federal government has not done so.
Italy: On July 22 Judge Cristina Palmesion ordered two former Eternit executives to stand trial for charges relating to negligent asbestos exposures experienced by hundreds of Italians. If convicted, Stephan Schmidheiny and Jean-Louis de Cartier De Marchienne could face up to 12 years in prison; the trial will begin on December 10 in Turin.10
Korea: On July 22, the Korean Agency for Technology and Standards (KATS) banned asbestos from all products for children and products that come into contact with the skin. Manufactured goods must be less than 0.1% asbestos; manufacturers of paint and wallpaper which use talc are compelled to obtain a public certificate proving that the raw talc contains less than 1% asbestos. 11 The KATS released a list of 17 products in six categories which had been confirmed as containing asbestos including: electric ovens, refrigerators, balloons, wallpaper, 11 brands of bicycles and 2 brands of motorcycle brake pads.12
Israel: on July 26, an asbestos bill drafted by the Environmental Protection Ministry was approved by the Ministerial Committee on Legislation of the Knesset; if it becomes law, it will establish a coordinated, legal structure for protecting public health and regulating environmental asbestos decontamination work; a ring-fenced budget will be provided. Although asbestos is no longer imported or processed in Israel, the bill would make the use of asbestos building products illegal. 13
India: Plans to reopen asbestos mines in Jaipur attracted criticism from the Mines Labor Protection Campaign, an NGO from Rajasthan, and environmentalists who reiterated the risk of asbestos exposures to workers in the mines and mills.14 The critics cited the results of a recent health check-up of 89 former asbestos mine workers which showed that eight of them were in a critical condition.
United Kingdom: On August 7, the Environment Agency (EA) stopped a ship the Margaret Hill, a 50,700-tonne liquid natural gas tanker leaving Southampton due to suspicions that it was being sent overseas to be illegally dismantled. Anyone intending to export a waste ship from England or Wales for dismantling must obtain authorization from the EA as well as the equivalent regulators in the destination country. As the EA had neither received nor approved any application to export this ship, it put a temporary stop on its sailing. According to an EA Press Release: This was the first time these powers have been used to stop a ship from leaving a UK port.15
Australia: In mid-August a meeting took place between asbestos victims' representatives, trade unionists and officials of James Hardie formerly Australia's leading producer of asbestos-containing building materials in Sydney to discuss the company's announcement that it would not be contributing to the asbestos diseases fund in 2009/10 because of the recession.16 A fortnight earlier, Australia's corporate watchdog the Australian Securities and Investments Commission outlined the heavy penalties it was seeking for the illegal behaviour of former James Hardie directors who had breached the Corporations Act. These included: fines of up to A$ 1.81 million and disqualification from managing a company for up to 16 years.17
During the Autumn, asbestos meetings will be held in Cambodia, Iran, India, Indonesia, the Philippines, Korea and Japan. Within a few months, ban asbestos legislation could be adopted by the Congresses of the U.S. and the Philippines. Outreach programs by campaigning non-governmental organizations will be raising public and medical asbestos awareness in Hong Kong, India, Iran and Indonesia. Trade union ban asbestos mobilization is also proceeding apace throughout the developing world. And, last but not least, upcoming legal prosecutions of negligent asbestos executives in Italy and Australia could result in hefty punishments including incarceration - for their complicitity with tortious corporate behaviour.
August 14, 2009
1 Tests of this material showed it contained 10% amosite asbestos.
Cleanup of Philippines Asbestos Dump Ordered. June 2, 2009.
2 Kazan-Allen L. Argentinean Asbestos Lawsuit in the U.S. August 14, 2009.
3 1,063 Recognized as Sufferers of Asbestos-linked Diseases. Japan Today. June 30, 2009.
4 TUCP Party List representative files bill in Congress banning asbestos. July 16, 2009.
5 The use of these products is still legal in the UAE for water supply and sewage. In 2007, 17,000+ tons of asbestos were imported by the UAE. See: Faulkner C. Asbestos Management in the UAE. July 26, 2009.
6 U.S. Department of Justice. Former Owner of the Largest Chrysotile Asbestos Mine and Mill in the U.S. Agrees to Address Contamination at Vermont Site. July 2, 2009.
7 Gov't ordered to pay 76.84 million over U.S. base worker's asbestos-related death. The Mainichi Daily News. July 6, 2009.
8 Chubu Electric Power ordered to compensate family over worker's asbestos-related death. The Mainichi Daily News. July 8, 2009.
9 Han J. Regulations on Asbestos Will Be Tightened. July 21, 2009.
10 Ariel D. Two men to be tried in Italy over asbestos deaths. July 22, 2009.
See also: http://asbestosinthedock.ning.com/
11 Asbestos Banned in All Manufactured Products. June 30, 2009.
12 Ho-jeong L. Asbestos found in 17 products in 6 categories. July 23, 2009.
13 From 1952-1997 the Itnit asbestos-cement factory, the only one in Israel, was operational in Acre, in the Western Galilee; waste material was used to pave roads and pathways throughout the area. Between 2002 and 2008, the incidence of mesothelioma in the Acre District was 5.72 per 100,000 residents.; by comparison, the rate in the Tel Aviv district is 0.55 cases per 100,000.
Waldoks EZ. Asbestos cleanup bill approved by committee. Jerusalem Post. July 28, 2009.
14 Dey A. Activists Oppose Government Move on Asbestos. August 4, 2009.
15 EA Press Release. Environment Agency stops ship leaving the UK for scrapping. August 7, 2009.
16 Asbestos victims seek compo assurance. August 14, 2009.
17 Cratchley D. Watchdog seeks heavy penalties for Hardie execs. July 27, 2009.