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International Day of asbestos victims State of science, State of the World

Andeva, Paris, 2012

Journée internationale des victimes de l’amiante Le colloque Journée internationale des victimes de l’amiante a été organisé par l’ANDEVA, l’Association Nationale de Défense des Victimes de l’Amiante, le 12 octobre 2012, au Palais du Luxembourg. Le colloque Journée internationale des victimes de l’amiante, ainsi que le présent volume dont il est issu, ont reçu le soutien et des subventions de l’Institut National de Santé et Recherche Médicale (INSERM), la Ligue Nationale Contre le Cancer (LNCC), le Conseil Régional d’Île-de-France (CRIDF), la Direction Générale du Travail (DGT) du Ministère du Travail, et la Mutualité Française.

International Day of Asbestos Victims The symposium International Day of Asbestos Victims was organized by ANDEVA, the French National Association for the Defence of Asbestos Victims, on October 12th of 2012, at Luxembourg Palace. The symposium International Day of Asbestos Victims and the subsequent present volume have received support from the National Institute for Health and Medical Research (INSERM), the National Ligue Against Cancer (LNCC), the Regional Council of Île-de-France (CRIDF), the Head of Health and Safety (DGT) from Ministry of Labour, and the Mutualité Française.

International Day of Asbestos Victims State of Science â€” State of the World

Traduction français/anglais et anglais/français : Fleur Pettie http://www.fleurpettietranslations.co.uk/

Translation French/English and English/French : Fleur Pettie http://www.fleurpettietranslations.co.uk/

Ce livre a été composé avec le logiciel technique d’Alberto Arabia

LATEX et avec la précieuse aide

This book has been composed with the software LATEX and with the valuable technical assistance of Alberto Arabia

ISBN 978-2-91-635242-8

Printed on permanent paper c ANDEVA, Paris, October 2014

9 782916 352428

Ce volume est dédié aux victimes de l’amiante du monde entier et à leurs familles This volume is dedicated to asbestos victims throughout the world and their families

Presentation/Editorial This volume «international day of asbestos victims» stems out of the symposium with the same name, organized by Andeva, held in Paris, palace of Luxembourg, on Friday 12th of October 2012. The first half-day of the symposium drew the state of fundamental research and scientific knowledge, related to epidemiology of asbestos-related cancers and the progresses – modest but genuine – related to therapies and fundamental research; the second half displayed the various problems due to asbestos use, past and present, the prevention of diseases and their compensation throughout the situation of various countries in Europe, Canada, United States, Mexico, Brazil, India, Japan and Korea, Australia and South Africa. This repartition has been kept in this book, even if it is partly arbitrary : scientific data are also to be found in the second part and social and human considerations are of course present in the first part. The first part «state of science» includes texts on the history and state of epidemiology of asbestos diseases by R. Lemen, on the epidemiology of asbestos-related diseases in Italy (a country at the forefront of epidemiological studies on asbestos) by E. Merler, in Québec, Canada (a country where data have long been held secret) by F. Turcotte and in Brazil (a country where data are only fragmentary) by H. Castro, followed by texts on medicine and fundamental research by A. Scherpereel, P-G. Betta and M-C. Jaurand. The second part «state of the world » displays a global panorama of the situation with respect to the use and exposures to asbestos, the diﬀerent legislations, situation and compensation of victims, struggles and actions for public health. These texts describe, among other things, economic and geographical data about asbestos trade (L. Kazan-Allen), the historical responsibility of Canada (P. Martin and K. Ruﬀ), the situation in United States (L. Reinstein), the two judgements with international repercussions on banning – vii –

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Presentation/Editorial

asbestos : the cancellation in 1991 of the EPA regulations in United States (L. Kazan-Allen) and the rejection of the complaint of Canada to WTO against France in 2000 (M. Parigot), the contrasting situations of India (M. Gupta), Japan and Korea, with an overview of the tragic situation in Asia, notably in China (S. Furuya and Y. Choi), also in Brazil (F. Giannasi) and Australia (L. Singh); the issue of compensation is described in the context of South Africa (T. da Cruz), France (M-J. Voisin) and the Netherlands (T. de Bruin), the current European situations in Belgium (E. Jonckheere), Germany (G. Albracht) and Albany (R. Hanxari), finally the global impact of the Eternit trial in Italy (B. Pesce) and an overview of the general situation in France and throughout the world (M. Hindry and P. Pluta). The knowledge of asbestos hazards is quite ancient, nevertheless translation of scientific knowledge into prevention has been much too slow and even today there are shocking inequalities between regions of the planet. Every country using or having used asbestos is facing today an epidemic of cancers ; the situation concerning prevention of diseases and compensation of victims is nevertheless highly contrasted. Asbestos is banned thoughout the European Community and in a further thirty countries, but even after Canada shut its mines, several countries remain big producers (Russia, China, Brazil, Kazakhstan) or big consumers of asbestos (China, India, Russia, Brazil, Indonesia, etc). These countries are precisely those where information, health surveillance and prevention are found lacking. The asbestos mining industry continues in some countries to spread misinformation on the hazards, sometimes even helped by their governments (once Canada, Russia today). Compensation of asbestos victims is very diﬀerent from one place to another. France can be shown as an example with the creation of the (French) Indemnisation Fund for Asbestos Victims (FIVA) ; in the United States compensation is usually obtained through lengthy legal procedures. In many countries asbestos cancers are just ignored by authorities. The symposium aimed at a double purpose : to increase diﬀusion of scientific knowledge and to develop an international public health movement. Several lines emerge naturally from this «International Day» and the publication of these proceedings; they echo the common declarations in Casale Monferrato, Italy, during April 2011 : – a call for a worldwide ban on asbestos, in agreement with the World Health Organisation(WHO) and International Labour Organisation(ILO) and international science societies;

Presentation/Editorial

– the urgency to stop double standards between industrialized and developing countries – the former exporting the asbestos cancer epidemic towards the latter; – the need to improve awareness and prevention of risks due to asbestos in place, above all within the building and maintenance trade; – the wish to put an end to the scientific fraud that allowed for too long the asbestos trade; – the will to develop a priority for scientific and medical research on asbestos related diseases; – the wish to generalize the principles of a « quick and fair » compensation for victims, drawing lessons from the example of the French compensation fund. The «international day of asbestos victims» in Paris has given the opportunity to develop these themes ; we want the edition and publication of the proceedings of this conference to help to provide better awareness of the risks and damages due to asbestos and stimulate better public health policies to fight this plague at regional, national, European and worldwide level. Paris, May 2014 Marc Hindry, Andeva

Le volume complet et les articles individuels de ce volume sont disponibles en version originale et en version française/anglaise, au format “.pdf”, sur le site de l’ANDEVA : http://www.andeva.fr/ The complete volume and the individual papers of this volume are available in original version and French/English version, format “.pdf”, on the website of ANDEVA : http://www.andeva.fr/

Contents Presentation/Editorial Introductory Speech – M. Hindry Opening speech – Senator A. David Closing morning speech – J-D. Combrexelle Preliminary afternoon speech – C. Hutin, MP

vii xv xix xxiii xxvii

State of Science

1. Epidemic to Pandemic: Asbestos in Our World – R. Lemen 1. Early history of asbestos studies . . . . . . . . . . . . . . . . . . . 2. Epidemiology and further asbestos studies . . . . . . . . . . . . . 3. Acting towards Occupational Safety . . . . . . . . . . . . . . . . . 4. Today’s state of knowledge . . . . . . . . . . . . . . . . . . . . . . 5. Conclusion and summation . . . . . . . . . . . . . . . . . . . . . .

4 8 12 14 26

2. Mesothelioma : epidemiology and compensation – E. Merler 1. The second conference on asbestos organised by the government . 2. The epidemiology of mesothelioma in Italy . . . . . . . . . . . . . 3. The SENTIERI project . . . . . . . . . . . . . . . . . . . . . . . . 4. The social welfare for diseases linked to asbestos . . . . . . . . . . 5. Early retirement for people exposed to asbestos . . . . . . . . . .

35 38 49 50 56

3. Asbestos and health risks in Quebec – F. Turcotte 1. The question of asbestos in Quebec . . . . . . . . . . . . . . . . . 2. The epidemiological situation of the diseases caused by asbestos . 3. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

63 64 68

4. Asbestos in Brazil, a public health issue – H. Castro 1. Ignorance of risks linked to asbestos exposure . . . . . . . . . . . . 2. Epidemiology of asbestos diseases in Brazil . . . . . . . . . . . . .

70 78

– xi –

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5. Treatment of malignant pleural mesothelioma – A. Scherpereel 1. Knowledge and diagnostic . . . . . . . . . . . . . . . . . . . . . . . 84 2. New treatments or therapeutic strategies for MPM. . . . . . . . . 86 3. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 6. A pathologist in the courtroom – P-G. Betta 1. The Eternit trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Validation of the histological diagnoses of mesothelioma victims . 7. Genotoxicity of asbestos fibres – M-C. Jaurand 1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Toxicology of asbestos fibres and context of mechanical studies 3. Hypotheses on the mechanism of action of asbestos fibres . . . 4. Studies on human mesothelioma . . . . . . . . . . . . . . . . . 5. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . .

. 97 . 98 . 102 . 105 . 106

State of the World

8. Pattern of Asbestos Production and Use 1. Asbestos Production 1950 – 2011. . . . . . 2. Asbestos Consumption 1950 – 2011 . . . . 3. Geographical Shift in Asbestos Markets .

93 94

113 – . . .

L. . . . . . .

Kazan-Allen . . . . . . . . . . 115 . . . . . . . . . . 118 . . . . . . . . . . 122

9. Asbestos and Canada – P. Martin 1. Asbestos : Canada’s sin. . . . . . . . . . . . . . . . . . . . . . . . 125 2. Hope and justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 10. Asbestos propaganda in Quebec and Canada – K. Ruﬀ 1. Canadian asbestos propaganda . . . . . . . . . . . . . . . . . . . . 129 2. The defeat of asbestos industry . . . . . . . . . . . . . . . . . . . . 130 11. Asbestos : Still legal and lethal in the USA – 1. My personal history with asbestos . . . . . . . . 2. A brief history of asbestos in the US . . . . . . . 3. Asbestos exposures today . . . . . . . . . . . . . 4. Conclusions and hopes . . . . . . . . . . . . . .

L. Reinstein . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . .

135 136 137 141

12. October 18, 1991: A Bloody Anniversary – L. Kazan-Allen 1. “Asbestos Ban and Phase-out Rule”, United States, 1989 . . . . . 145 2. Implications of U.S. Ban for Canada . . . . . . . . . . . . . . . . 149 3. Concluding Thoughts . . . . . . . . . . . . . . . . . . . . . . . . . 161

Contents

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13. Asbestos and WTO – M. Parigot 1. History of Canada’s complaint to the WTO . . . . . . . . . . . . 163 2. The legal arguments of both parties . . . . . . . . . . . . . . . . . 167 3. Conclusions about the ruling of the WTO and its consequences . 170 14. Asbestos in India : Struggles and Realities – M. Gupta 1. Indian background. . . . . . . . . . . . . . . . . . . . . . . . 2. Mining of asbestos in India . . . . . . . . . . . . . . . . . . . 3. Imports and Exports . . . . . . . . . . . . . . . . . . . . . . 4. Asbestos in Indian Parliament . . . . . . . . . . . . . . . . . 5. Role of Ministry of Environment and Forests (MoEF) . . . . 6. Legal Battles . . . . . . . . . . . . . . . . . . . . . . . . . . . 7. Problems and Challenges . . . . . . . . . . . . . . . . . . . . 8. National Program to Eliminate Asbestos . . . . . . . . . . . 9. Successes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11. Appendix : Case Studies . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . .

173 174 176 178 180 181 182 184 185 186 189

15. Asbestos in Japan and Asia – S. Furuya, Y. Choi 1. Asbestos in Japan – from huge consumption to ban . . 2. The Kubota plant shock . . . . . . . . . . . . . . . . . 3. The dramatic situation in Asia . . . . . . . . . . . . . . 4. Compensation of asbestos victims in Japan . . . . . . . 5. Comparison of compensation funds for asbestos victims

. . . . .

197 200 202 205 210

16. Asbestos in Brazil : Controlled use? – F. Giannasi 1. Industrial strategies . . . . . . . . . . . . . . . . . . . . . . . . . 2. The ILO Convention 162 in Brazil and the tripartite model . . . 3. The «controlled use of asbestos»: distinct discourse and practice 4. Forward and backward steps towards an asbestos ban . . . . . . 5. Opposition forces : the creation of ABREA . . . . . . . . . . . . 6. The struggle for the visibility of asbestos diseases in Brazil . . .

. . . . . .

214 219 224 229 236 239

. . . . .

17. Australia’s Asbestos Journey – L. Singh 1. Mining and Wittenoom . . . . . . . . . . . . . . . . . . . . . . . . 247 2. Recent Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249 18. Asbestos Relief Trust, South Africa – T. da Cruz 1. The Asbestos Relief Trust . . . . . . . . . . . . . . . . . . . . . . 254 2. Brief Overview of the Statutory Compensation Schemes . . . . . . 256

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19. Asbestos Victims Compensation Fund in France – M-J. Voisin 1. Compensation for victims before the creation of FIVA . . . . . . . 263 2. A quick and easy compensation for all the victims of asbestos . . . 265 3. The parameters of compensation . . . . . . . . . . . . . . . . . . . 266 4. The management of FIVA . . . . . . . . . . . . . . . . . . . . . . 269 20. Asbestos in the Netherlands – T. de Bruin 1. The situation in 2012 in the Netherlands . . . . . . . . . . . . . . 273 2. The Dutch compensation fund . . . . . . . . . . . . . . . . . . . . 274 21. Asbestos and Belgium – Eternit and Justice – E. Jonckheere 1. Kapelle – Belgium . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 2. Creation of ABEVA . . . . . . . . . . . . . . . . . . . . . . . . . . 279 22. History of Asbestos Ban in Germany – G. Albracht 1. A lethal hazard ignored for decades. . . . . . . . . . . . 2. Trade unions and Environment Agency . . . . . . . . . 3. Eternit buys researchers . . . . . . . . . . . . . . . . . . 4. Trade unions lead the way . . . . . . . . . . . . . . . . 5. Phased ban and asbestos substitution . . . . . . . . . . 6. Cornerstones of the subsequent ban on asbestos . . . . 7. Each year the ban is postponed . . . . . . . . . . . . . 8. Learning from the asbestos tragedy . . . . . . . . . . .

. . . . . . . .

283 284 285 288 289 291 292 294

23. Asbestos in Albania – O. Hanxari, R. Hanxari 1. History of asbestos in Albania . . . . . . . . . . . . . . . . . . . . 299 2. The public health care for the asbestos use . . . . . . . . . . . . . 310 3. The policies regarding asbestos in Albania . . . . . . . . . . . . . 311 24. The Eternit Trial in Italy – B. Pesce 1. A historical verdict . . . . . . . . . . . . . . . . . . . . . . . . . . 313 2. The result of thirty years of struggle . . . . . . . . . . . . . . . . . 315 3. The international dimension of the victims’ struggle . . . . . . . . 321 25. Asbestos in France and the world – M. 1. Asbestos in France: an overview . . . . . 2. Asbestos in the world: an overview . . . 3. National and international outlook . . . Appendix Appendix Appendix Appendix

1. 2. 3. 4.

Hindry, P. . . . . . . . . . . . . . . . . . . . . .

Pluta . . . . . . . 325 . . . . . . . 337 . . . . . . . 347

List of contributors Scientific Commitee Organization Commitee Conference Program – 12th October 2012

355 359 361 363

Introductory Speech Symposium: International Day of Asbestos Victims State of science – State of the world

12th October 2012, Luxembourg Palace, Paris

by Marc HINDRY On behalf of Andeva, I welcome you to the “International Day of Asbestos Victims” symposium, which you can follow in French, English, Italian, Spanish and, for the first part of the afternoon, in Portuguese. First of all I would like to thank the bodies which sponsor and support this conference: • INSERM, Institut National de Santé et Recherche Médicale (French Institute of Health and Medical Research) • Ligue Nationale Contre le Cancer (LNCC) (French National Cancer League) • Conseil Régional de l’Île–de–France (the Regional Council of Île-de-France) • The DGT, direction générale du travail (General Directorate for Labour) • The Mutualité française (organism from French Insurance System) I would also like to thank the numerous French parliamentarians who are here today, and in the first instance, Senator Annie David, Chair of the Commission on Social Aﬀairs in the Senate, who is our host and will open this symposium, and Christian Hutin, MP, chairman of the study group on asbestos in the National Assembly, who will speak this afternoon. I would like to oﬀer the apologies of Michel Sapin, the Labour Minister, represented by Jean-Denis Combrexelle, Director of the DGT (General Directorate for Labour) who will speak later in the morning. I of course also thank all our foreign guests some of whom have come a very long way and in particular our foreign parliamentarian guests: – xv –

xvi

Introductory Speech – M. Hindry

• Patrick Martin, member of the Canadian Parliament ; • Lisa Singh, member of the Australian Senate. Why an international day of asbestos victims in France? In our country the ban on asbestos and the awareness of the hazards of asbestos have been late but dynamic and we like to think that Andeva contributed to this strong reaction. Asbestos use is widespread and has wreaked havoc in the whole world; it carries on today in all too many countries. Why in the Senate? Parliamentarians in France have played an important part in developing a coherent policy of prevention and compensation of diseases caused by asbestos exposure. The 2005 Senate report “Le drame de l’amiante en France : comprendre, mieux réparer, en tirer des leçons pour l’avenir” (“The tragedy of asbestos in France: understanding the issue, improving worker’s compensation and drawing lessons for the future” 1 ) is a benchmark and a model in parliamentary reports; this report was followed by several fact-finding missions which led to the creation of a parliamentary group on asbestos in the Senate. Why an International Day now? The last thirty years have seen the trade of asbestos die out in Europe but spread and develop in Asia, South America and in the ex-Soviet Union. However the scene has recently seen radical changes; two of the five asbestos producers are about to stop asbestos: in Canada – the historic producer as well as the unrestrained promoter of propaganda to hide the devastation wreaked by asbestos – the mines are shut and in the last few days the government of Quebec announced that it would not subsidize a relaunch, which in principle means that asbestos “is finished in Canada!”; in Brazil the future of asbestos is pending with the Supreme Federal Court, which is due to give its ruling in the next few months. Last year the trial in Turin, Italy, reminded the world that the crimes against public health do not always remain unpunished. What is the agenda for this conference? This morning, there will be a review of knowledge in epidemiology and medical research and this afternoon a mapping of asbestos and its ravages on 1

(Editors’s note) The Senate report is available online at: http ://www.senat.fr/rap/r05-037-1/r05-037-11.pdf This report is a follow-up of the report of October 1997 by the Parliamentary Commission for scientific and technological choice assessment titled “L’amiante dans l’environnement de l’homme : ses conséquences et son avenir” (“Asbestos in the human environment: its consequences and its future”) by Jean-Yves Le Déaut, MP, and Henri Revol, senator, n˚329 AN (XIe législature) et n˚41, Senate (1997-1998) also available on line at : http ://www.senat.fr/rap/o97-041/o97-041?toc.html

Introductory Speech â€“ M. Hindry

xvii

our planet. Scientific knowledge on asbestos is not, for the most part, recent. But its awareness in relation to public health has been late everywhere and is still unknown in many countries in the world. What do we hope to achieve with this day? We hope to contribute information and knowledge, we hope to export the important progress made in asbestos matters. Ladies and Gentlemen, you who played an important role in France and Europe in asbestos matters, you can play the same role worldwide. For our part, we wish to ban asbestos worldwide, to participate in the coordination of policies for disease prevention and victim compensation, and our ultimate aim is to eradicate asbestos. I will now give the floor to senator Annie David, Chair of the Commission on Social AďŹ€airs in the Senate, who is our host and will open the symposium.

Opening speech Symposium: International Day of Asbestos Victims State of science – State of the world

12th October 2012, Luxembourg Palace, Paris

by Senator Annie DAVID Thank you Mr Hindry, Ladies and Gentlemen, Mister President of Andeva. I would like, first of all, to thank Mr Pluta for requesting that this morning and this international day of asbestos victims take place here in the Senate. I am truly grateful because I always think it very important to be able to talk about asbestos within parliamentary premises. As you heard a moment ago, I believe that members of parliament are in demand and have a role to play. It is therefore right that you can be heard directly and have this debate. So I am doubly delighted for the invitation to sponsor this symposium and also of course because I share its objectives. There are two objectives: to increase scientific knowledge, but also develop an international movement for public health. I have heard your wishes and I am in complete agreement with you. Indeed, what we need to aim for is the complete eradication of asbestos, since in some countries asbestos is not yet banned. I heard you say that in Canada, asbestos is about to be stopped; this is obviously good news since the reality of our social democracies may be measured, I believe, by the way they tackle asbestos and the compensation due to the victims. Yet, nearly 16 years after France finally banned asbestos use, the people responsible for one of the greatest health disasters have still not been brought before the courts. How can we explain for example that the Eternit trial ended in Italy with the condemnation of its executives to stiﬀ jail sentences and large compensation amounts when at the very same time the charges were dropped in France. Admittedly the jurisprudence of the appeal court on the inexcusable – xix –

Opening speech – Senator A. David

negligence by the employer enabled the victims to justify their rights to compensation, but criminal justice has not made any progress. Exonerated, for the moment at least, of any conviction other than for damages, the asbestos industry barons have also escaped paying directly into FIVA, the compensation fund for asbestos victims; and this despite our protests. However in the name of so-called employment protection and possible business recovery, it is not the companies using asbestos which are obliged to contribute to the compensation fund for asbestos victims, but in fact it is spread across the whole business community, which has to pay through the injuries and diseases department of social security. So there is a kind of business solidarity concerning asbestos, but it shows in any case, I believe, a lack of responsibility on the part of the asbestos-using businesses. This unfair solution in fact weakens FIVA, which is seen by employers as an unjustified drain. Somehow, you can understand these businesses which, from this point of view, are exemplary and have not used asbestos, but are still forced to contribute to this solidarity fund. It is not surprising that to enable the Social Security Department to deleverage its debts, the first reduction in expenditure was the FIVA grant. This year, I am sorry to report that FIVA will have a shortfall of 200 million euros. I am really sorry for that, despite the arguments of the government to justify its choices by the fact that FIVA has a surplus. But if FIVA has a surplus, it is without a doubt because the FIVA compensations are too narrowly defined. That is in any case, what I think. Nevertheless the very brave decision of the Minister of Health and Social Aﬀairs concerning the Douai victims must not hide what appears to me vital: admittedly, some victims will not have to repay the sums which had been allocated to them, which I find normal; but basically no victim has a right to total compensation by FIVA. This is pushing victims towards litigation, with all its hazards. Thus, choices are made to the detriment of the victims. The choice of access to the FCAATA (Fonds de Cessation Anticipée de l’Activité des Travailleurs de l’Amiante – Fund for early retirement of asbestos workers), based on a list of establishments, is to my eyes the most flagrant example. This list deprives many workers exposed to asbestos from the possibility of early retirement while exposing those gaining from it to the suspicion of benefiting from the eﬀect of a windfall. I find this situation rather a shame. This argument was that of the previous government to impose a delay in the age of retirement for the beneficiaries of the FCAATA. It needed the determination - across parties I have to say, as in the example of the 2005 report, of which you spoke earlier - to prevent the application of this unjust measure. The PLFSS2 2013 gives all the scope of this measure by harmonising 2 PLFSS : projet de loi de financement de la Sécurité sociale, (social security financing bill).

Opening speech – Senator A. David

xxi

the conditions set for early retirement for all those eligible for this fund, no matter which scheme they are aﬃliated to. Thus, there is a negative point with this FIVA shortfall of 200 million in this Social Security Bill but there are also positive points. I believe, or I hope so in any case. It is in this sense that, here in the Senate, we approach each of the laws presented to us and that gradually all the requests made by the asbestos workers will be taken into consideration. I really do hope so. Nevertheless, we must be constantly vigilant in the face of the everpresent risk of the asbestos victims being sacrificed to industrial, budgetary or even political considerations. As Mr Hindry announced in his introduction, in the Senate, we are putting into place a working group on asbestos which will use the 2005 report mentioned earlier, as a starting point. The three co-authors and co-recorders were Gérard Dériot, Jean-Marie Vanlerenberghe and Jean Pierre Godefroy who should participate for a while in your debates today. This working group, basing itself on this report, will of course work in coordination with Andeva and other personalities towards prospectives and possibilities to further improve the situation of the workers aﬀected by asbestos and lead the fight to bring about the eradication of asbestos everywhere in the world. I wish you a good working day and thank you again for having chosen the Senate.

Closing morning speech Symposium: International Day of Asbestos Victims State of science – State of the world

12th October 2012, Luxembourg Palace, Paris

by Jean-Denis COMBREXELLE Jean-Denis Combrexelle, managing director of the DGT, is representing Michel Sapin Minister of Labour. I wish to thank Andeva first of all for having invited the head of the DGT3 , to speak about asbestos at this symposium. I see it as a sign of confidence in the Ministry and its administration which has always done its utmost to ensure the health of its employees as its primary function. The scope of this symposium seems to me particularly interesting and quite simply all too rare. This is an international approach. The issue of asbestos goes far beyond national frontiers. Even if all the responses, be they in terms of assessment, research or terms of use, are national ones. This symposium is calling for an international approach which will allow a mutual enrichment and also a better comprehension of national issues. My purpose here will not be to, once again, provide details of the answers brought forward by the French state. It will be instead, in my current position, to try drawing general lessons from the tragedy of asbestos. The first lesson is that, when you talk a lot - and rightly so - of the psycho-social risks, you must not forget that the first risk to which employees are exposed is a physical risk. It goes from the fatal accident at work to exposure to products which are carcinogenic, mutagenic and reprotoxic (CMR), through to chemical risks and all the pathologies of occupational 3 DGT, Direction Générale du Travail, Directorate of Labour – in charge of policies for work conditions, health and safety in the workplace.

– xxiii –

xxiv

Closing morning speech – J-D. Combrexelle

diseases. It is not a question of establishing a hierarchy between risks but rather to have a broad vision which goes from accidents at work, cancers, the psycho-social risks, through to musculoskeletal disorders (MSD). This broad vision which involves various disciplines is incidentally at the basis of the ongoing reform of occupational medicine. The second lesson is the importance of assessment, of a legitimate and independent scientific research. The question is not to know whether the administration has links to the businesses; not only can the administration have contacts with businesses but it must. However its thoughts and actions must be based on a strong, independent and legitimate expert assessment. In France, this approach towards health at work was introduced rather late. This is the mission entrusted to what is now ANSES4 . This body is still working on asbestos. As you know, its studies resulted in the ongoing reforms concerning the exposure limit values. But everything must be done to avoid new asbestos tragedies. The fields which are now those of ANSES and of assessment, are among others, the nanotechnologies, ceramic fibres and everything that really represents emerging risks. This is within the framework of a European approach if you want it to be efficient. The third lesson is precisely that if you want to be efficient, I would paraphrase Edgar Morin in the matter, you must acknowledge the complexity of the responses that are needed. The reality of the tragedy of asbestos is obvious but the responses needed are not. The clear evidence of this is given by this symposium, where you realise that despite for example, the efforts of the French state, notably at the 95th session of the International Labour Organisation (ILO), there was a failure to reach agreement for a rapid and total elimination of asbestos. The complexity of the diagnosis and of the responses needed is also a characteristic of the ongoing reform (decree of May 4, 20125 ) of the limit values concerning asbestos. My purpose here is not a plea for this reform, but simply to try to make it understood that the choice is between a simple but unworkable solution and a solution more complex but effective – the guarantee of a real protection of employees. I would like to say that in fact the real protagonists who are gathered here, and know this dossier, have understood the issues of this choice and refuse all simplified debates. I would also say that with the substantial reduction of the limit value and the introduction of new methods of measurement, we feel we have gone to the heart of the issue and precisely because this symposium is international, we would very much like to hear the 4

ANSES - Agence nationale de sécurité sanitaire de l’alimentation, de l’environnement et du travail (National agency for sanitary safety in food, the environment and at work). http ://www.anses.fr/fr 5 Decree no. 2012-639 of May 4, 2012 relating to the risks of asbestos exposure, Journal Oﬃciel May 5, 2012.

Closing morning speech – J-D. Combrexelle

xxv

voices of experts from other countries to enable us to evaluate the ongoing reform. The fourth lesson is the issue of social justice. It requires of course that victims be compensated and be able to go rapidly into early retirement when their life expectancy is reduced. This is the function of FIVA (the compensation fund for asbestos victims) and what is called early retirement due to asbestos. Everyone, and not just the State, must ensure that the system put in place is fair in its design as well as eﬃcient in its implementation. The fifth and final lesson, but potentially the most important, is that of the culture of health and safety at work. Contrary to what is sometimes being said and written, asbestos was not the trigger for the reforms and the impetus that has been given in matters of health at work. It acted as a boost for putting into place reforms, for example on the health plans at work. But for this matter, you cannot solely rely on the State or the Social Security bodies. There are of course, the businesses which are held liable and also the social partners in the broadest sense, which does not exclude the associations. Though beyond that, we will have won the bet, the challenge, the day that every engineer, every person in charge, every employee, every trade unionist will have understood that the protection of the employee under his/her responsibility, is both a social or moral issue as well as an economic problem. The costs of asbestos, be they social, economic, financial and of course – I say it again – human, are immeasurable. If we have to draw a lesson from all this, it is that everything must be done to act as soon as possible. This is also what was said during the last great social symposium and was repeated during the environmental conference of these last few months. The issues of working conditions and safety at work are really social issues. The crisis must not lead to the abandoning of this imperative, but on the contrary, must lead us in the name of a certain idea of social justice and social model, to invest still further in the issues of health and safety at work. This does however mean conflicts between the protagonists but mainly a shared eﬀort supported by all. To respect the memory of the all too numerous victims of the tragedy of asbestos is perhaps to share in this strong conviction, taken on for the future. Thank you.

Preliminary afternoon speech Symposium: International Day of Asbestos Victims State of science – State of the world

12th October 2012, Luxembourg Palace, Paris

by Christian HUTIN, MP Thank you Mr Chairman, thank you Pierre Pluta. Allow me to give you a Commons greeting, I think that Annie David did it in the name of the Senate. I greet you as the MP for Dunkirk in the North of France, chairman of the asbestos group at the National Assembly and deputy chairman of Social Aﬀairs at the National Assembly. I would like to congratulate you, Mr Chairman and the members of Andeva for the exceptional quality of this international symposium, which is rare in France, perhaps unique for a long time. And I would like to say that the debates I attended this morning were particularly remarkable. Asbestos is a tragedy, I would almost call it a disaster. To sum it up in the 5 minutes allocated, it is like a French tragedy written by Corneille. I am the MP for Dunkirk and I would like to unfold in front of you the fight and the life of the victims and associations of the people of Dunkirk. For our foreign guests, for the Anglo-Saxons, Dunkirk will remind them of the Great War, where many Americans, Canadians and Australians came to defend democracy. Dunkirk is also an intensely industrial urban area. Our Italian friends will understand that it is probably not comparable to the tragedy they experienced, but it is in the port of Dunkirk that 80% of the asbestos imported in France was unloaded, and we saw in the earlier presentations that at that time it was delivered loose. I leave you to imagine what the dockers breathed through when they unloaded loose asbestos, like snow, without ever having been warned of the risks. Dunkirk is also a port with shipyards. – xxvii –

xxviii

Preliminary afternoon speech – C. Hutin, MP

Those who have known the shipyards know the severity of the situation. In Dunkirk, Pierre and the Dunkirk inhabitants who are present here, know that no week goes by without our local paper publishing two death notices on average. It is unimaginable in an urban area of 210 000 inhabitants. This is to give you a background. If I talk about Dunkirk, it is also because it allows me to say that if I am a lieutenant or a captain in the struggle, the flag-bearers, the generals are the associations. Without the associations in France nothing would have been done and in other fields. I evoke the problem of agriculture where the associations and the unions have not been as effective, and asbestos is the spearhead of this approach to assist the victims and to acknowledge the victims. Dunkirk’s story is also about the struggle of the widows of asbestos. You must all have heard about it. The widows of asbestos have mobilised with all their heart, passion, sorrow and personal tragedy. They have also mobilised the media and they have attracted public attention. The widows of asbestos parade around the law courts. It allows me to speak of justice. Italy had a great success and we look at her with admiration and hope. French justice has two characteristics, it has some good sides but it is very slow and often dependent on political power. This is what creates problems for us today and this is where we [MPs] fight and I will try to be one of the leaders of what could soon be a framework law, which seems necessary to me today, on the compensation of victims in France, and on a struggle that seems fair to me because it is the people responsible who will have to pay, as they had to in Italy. It is a fight which will have to be fought during this term of office. There is politics. Politics is my job. As the chairman of the working commission on asbestos at the National Assembly, I try to do my utmost. This is what Charles Peguy used to call the “well-informed sentinels”. A politician interested in an issue must be a true watchdog and a true fighter. We recently won a victory in Douai. I think that we can be proud of it since FIVA, which was supposed to give compensation for harm done, became the accuser itself and was trying to have the widows refund the money that was rightly due to them. We succeeded by proposing to a group of parliamentarians the signature of a motion requesting the withdrawal of FIVA’s iniquitous motion. There were, something which had never happened in France since the Dreyfus Affair, 412 parliamentarians who signed a motion requesting the withdrawal of this fund’s action. This is a victory for the associations and probably also for political influence. I take this opportunity to bring you greetings from Marisol Tourraine, the Minister of Health, who cannot be present today because at the moment we are in the middle of the Social Security finance plan. Politics are important. There is in the fight against asbestos a political divide. Let us be clear, this divide will always exist because there is an important industrial lobby. We have come

Preliminary afternoon speech â€“ C. Hutin, MP

xxix

to know this in France with the famous association which gave its blessing to a product which everyone knew was extremely dangerous. It is necessary to fight lobbying on a permanent basis, and here, politics also play a major part. I will end by saying something which particularly interested me this morning. Which is the remarkable way in which scientists and doctors work with potential hopes. I am a GP, so I have personally experienced the death of friends and patients, and this morning I listened to Professor Scherpereel, an exceptionally bright doctor from the Medical Faculty in Lille. I myself studied under his father. His son shows an utter simplicity and an exceptional commitment and the research he is currently carrying out is full of promise. But then, there intervenes a final important factor and that is finances. It is terrible that he lacks 30 000 euros to get this possibility of working on lung tissue oďŹ€ the ground. I was also speaking to a man from Nantes who could also bring advances and told me about this vaccine against measles which, no matter how surprising it may seem, could also bring us great progress in the care of people struck by asbestosis and asbestos. There too, you need to find funds. This is a political struggle and a struggle that I will lead in the coming years. I have not yet been elected chairman of the asbestos commission at the National Assembly because the post has just been established. I do not think it will pose any problems. I will finish by saying that social health is a national treasure and the national state must defend it at all costs. It came with the Age of Enlightenment. And if the end of the 20th century brought a dark shadow on public health, I hope that, for asbestos as well as other problems that will appear, the beginning of the 21st century will bring us a lot of hope. This is what I wanted to say.

Part I

State of Science

Chapter 1

Epidemic to Pandemic: Asbestos in Our World Es bildet ein Talent sich in der Stille, sich ein Charakter in dem Strom der Welt Talent develops in Quiet, Character in the Torrent of the World Johann Wolfgang von Goethe (Torquato Tasso)

by Richard LEMEN

Each of us have come to Paris today because we have knowledge of the devastation that asbestos has caused either to ourselves, to our family or to someone we care about a great deal. Because of this we have been researching, studying, discussing what we can do to solve the problems exposure to asbestos has brought. This represents the “Talent” Goethe speaks of that we develop in the “Quiet”. John Kenneth Galbraith, an American Economists, wrote a book some years ago titled “The Economics of Innocent Fraud-Truth for our Time”. Reading this book I was taken by the terms he described for the purveyors of the system that has lead to our being here today – ‘The Corporate System’. He goes on to describe the modern corporation as the dominant force in present day economy. Further he states, “Sensitive friends and beneficiaries of the system do not wish to assign definitive authority to the corporation. Better the benign reference to the market.” Thus the ‘Innocent Fraud’ of which he speaks is driven, not by responsible entities, but by the ‘Market’, a non-descript, no-being with no conscious or sense of responsibility. –3–

1. Epidemic to Pandemic: Asbestos in Our World – R. Lemen

The author further states, “Reference to the market system is, to repeat, without meaning, erroneous, bland, benign. It emerged from the desire for protection from the unsavory experience of Capitalist power, as noted in the legacy of Marx, Engels and their devout and exceptionally articulate disciples. No individual firm, no individual Capitalist is now thought to have power; that the market is subject to skilled and comprehensive management is unmentioned even in most economic teachings.” As this he attributes the ‘Fraud’. So why have we come here today? We have come to observe an International Day for Asbestos Victims. It is not to just remember today’s victims but also those of the past and future. And it is how we got here that I will speak today and of what choices we have for our future and the consequences they represent if not taken.

1. Early history of asbestos studies As an epidemiologist, I began studying asbestos in 1969, but what I found was not new. I had not made any monumental discovery. Others before me had found those epidemiological connections between asbestos and disease. Take for example the short life of Nellie Kreshaw.

Dr.$William$$Edmund$Cooke$names$the$lung$ disease$caused$by$asbestos$–$Asbestosis$;$$when$$ Describing$the$case$of$this$disease$in$a$33$year$ old$woman$named$Nellie$Kreshaw$of$Rochdale,$ England.$ Age$12$–$worked$in$a$coEon$mill$ Age$13$;$$worked$at$Garsides$asbestos$mill$ Age$26$–$worker$at$Turner$Brothers$Asbestos$$ $ $$$$$$$$in$Spinning$department$ Age$33$–$Died$06:30$$ $ $ 14$March$1924$

Nellie Kreshaw 1891-1924

§1. Early history of asbestos studies

Nellie Kreshaw begun working in a cotton mill at age 12, then went to work at age 13 at Garsides Asbestos Mill, after which 14 years later she went to work for Turner Brothers asbestos plant in the spinning department. She died at the early age of 33 in 1924 and became the poster person we think of when we discuss the disease asbestosis, named from her case by Dr. William Edmund Cooke in 1927 (Cooke, 1927). Nellie died a pauper and her body was laid for eternity in an unmarked grave while the owner of Turner Brothers, Sir Samuel Turner, died just 150 days later at age 84 with a net worth of over £1.2 million or 1.5 billion today. An excellent description of this case is found in the book Magic Mineral To Killer Dust - Turner & Newall and the Asbestos Hazard by Geoﬀrey Tweedale. Nellie Kershaw’s death was not the first attributed to exposure from asbestos reported in the medical literature. Here in France, Auribault reported numerous deaths (@50) in the French asbestos textile industry (Auribault, 1906).

Normandy, France 1906 ; Asbestos textile factory

The next year Dr. Montague Murray of Charing Cross Hospital in London described such diseases clinically using the death of a 33 year old carding room worker from a local asbestos mill with lung disease, commonly referred to then as pneumoconiosis or “dust disease of the lung”. The worker also told Dr. Murray of 10 other co-workers from the same department in this mill having died of similar lung conditions (Murray, 1907).

1. Epidemic to Pandemic: Asbestos in Our World â€“ R. Lemen

Charing Cross, hospital, London; asbestos factory (earlier XXth century)

Many such descriptions continued in the medical literature before the case of Nellie Kreshaw. In fact Canadian and American insurance companies ceased insuring known asbestos workers by 1912, because of their high risk of death. In the American Journal of Roentgenology and Radium Therapy, radiological descriptions of what pneumoconiosis, from asbestos exposures, looked like on x-ray were described (Lemen, 2012).

Left: Right:

old X-ray of lung affected by asbestos; book on respiratory mortality linked to dust exposure (1918)

By 1930 the first epidemiology study to confirm the causal association between asbestos exposure and disease was published by E.R.A. Merewether a medical inspector of factories in the UK and C.W. Price a engineering inspector of factors. In this study they documented irreversible and fatal lung diseases among a group of 374 asbestos factory workers, which up to this time had only been reported through individual case reports of such diseases. Overall 28.1% had the disease asbestosis but after 20 years of exposure 80% became diseased (Merewether & Price, 1930).

§1. Early history of asbestos studies

Dr.

E.R.A. Merewether (1892-1970)

While this publication was that of a British Government report it did not go unnoticed by the world’s medical literature appearing in major medical publications in both Europe and the United States the very same year (Lemen, 2011)1 . It was now confirmed by the epidemiological method that asbestos caused the fatal disease asbestosis. Not only was the cause of asbestosis confirmed but also Merewether and Price gave specific guidelines on how asbestos diseases could be prevented. It is of note that the guidelines, outlined by these Inspectors of Factories, are exactly what are still the most eﬀective and remain as valid today as they were 72 years ago. Their methods included first substitution, and if not followed then, engineering controls to prevent dust inhalation using ventilation, vacuum cleaning, wetting the dusts containing asbestos fibers, education of the workers with prominently placed warnings and lastly, meant for use only during emergencies or breakdowns of the engineering methods, the use of personal protections such as respirators. History of our knowledge of asbestos-related disease continued to expand with the suspicion of a causal association between lung cancer and asbestos, by 1935 (Lynch & Smith, 1935; Gloyne, 1935).

1 In France, the British report was amply described by Dr V. Dhers, 1930, «Amiante et asbestose» in La Médecine du travail , pp 147–172 and 187–209 (editors note).

1. Epidemic to Pandemic: Asbestos in Our World â€“ R. Lemen

Cancer & Asbestos 1935

1936

1938

1939

1942

Lynch and Smith (1935) in the United States and Gloyne (1935) in the United Kingdom both associated occupational asbestos exposure with lung cancer. Reports appeared in the medical literature of lung cancers occurring in asbestos exposed workers (Egbert and Geiger, 1936 & Gloyne, 1936). German physicians began calling lung cancer an occupational disease of asbestos workers (Nordman, 1938). The UK Inspectorate of Factories report in the 1938 Annual Report that 12 cases of lung cancer occurred among 103 cases of fatal asbestosis or 11.6% (HMSO, 1939). Hueper (1942) in his classic book on cancer discusses asbestos related lung cancers.

2. Epidemiology and further asbestos studies Epidemiology later confirmed the association with lung and pleural cancers in 1949 when Merewether, the Medical Inspector of Factories reported a 13.2% increase of lung cancer among 235 registered asbestotics in the UK and then six years later through an cohort study of asbestos textile factory workers, conducted by Sir Richard Doll in 1955 (Merewether, 1949; Doll, 1955). Doll found the risk of lung cancer to be on the order of 10 times that experienced of other non-asbestos exposed men. In a 1955 publication, Doll studied mortality in a cohort of 113 workers, in a textile asbestos factory, employed for more than 20 years. In this group 11 deaths by lung cancer were observed, compared to the 0.8 expected, based on mortality data in England and Wales. Sir Richard Doll (1912-2005)

Â§2. Epidemiology and further asbestos studies

By the 1940s another, albeit very rare cancer, was reported among workers exposed to asbestos, called mesothelioma (Lemen, 2011). However, a pivotal report was the report of Christopher Wagner of Kimberly South Africa in 1960. Dr. Wagner, a pathologist at a Kimberly Hospital, had seen many cases of this very rare tumor, of the pleural lining of the chest. Upon further examination he found many were from a region near the town of Kuruman, made famous because of the Kuruman Eye one of the largest springs in South Africa and the MoďŹ€at Mission. With the vast mineral deposits including iron, manganese, as well as asbestos, found around the mid-1800s, in this North West Cape area of the Kalahari Thornveld a new mining industry developed. By 1928 the conditions in the mines were described as appalling and evidence of illness was being reported (Jacobs, 2003). Thus the report by Wagner et al. of 33 cases of mesothelioma, most from the asbestos mining area near Kuruman, lent further evidence of this rare tumorâ€™s relationship to asbestos. Wagner and his colleagues, findings were published in a major medical journal having worldwide distribution (Wagner et al. , 1960).

Pleura ; X-ray of a mesothelioma ; Dr.

J.C. Wagner (1923-2000)

While the Wagner et al. paper did not represent an epidemiology study it was the largest collection of mesothelioma cases, thus far reported, in the medical literature. As a result two researchers in the United States followed up with studies on asbestos manufacturing and end product users of asbestos. First published was the study by Thomas Mancusco and Elizabeth Coulter, both formerly with the Ohio Department of Health and now the University of Pittsburgh. Their study, of a manufacturing facility in the Cincinnati, Ohio area and funded by the United States Public Health Service, was published in 1963 showing associations of death from asbestos exposures due to asbestosis, lung cancer, mesothelioma of the peritoneum, and cor pulmonale (Mancusco & Coutler, 1963). Their findings of mesothelioma were consistent with others showing associations with asbestos (Cartier, 1952; Leicher, 1954; Konig, 1960; Wagner et al., 1960; Keal, 1960).

Ad:

1. Epidemic to Pandemic: Asbestos in Our World – R. Lemen

Loveland factory, Ohio ; Dr.

Thomas F. Mancusco (1912-2004)

The following year, Irving J. Selikoﬀ, Jacob Churg and E. Cyler Hammond from the Mr. Sinai School of Medicine and the American Cancer Society in New York published a major study of end-product user of asbestos. In their study they followed a group of building trades insulators in North America whom they described as having relatively light, intermittent exposures to asbestos. All of the 632 workers had entered the trade prior to 1943 and followed through 1962. Forty-five had died of either lung or pleural cancers when they calculated only 6.8 would have been expected to have. Three of the pleural cancers were mesotheliomas and they also found one peritoneal mesothelioma and since these were such rare tumors no expected numbers could be calculated, thus their observation of 4 mesotheliomas was quite a high incidence. In their cohort 29 also died from stomach, colon, or rectum cancers when they calculated only 9.4 would have been expected to die. (Selikoﬀ et al., 1964).

Dr.

Irving J. Selkoff (1915-1992)

§2. Epidemiology and further asbestos studies

The studies by Mancusco et al. and Selikoff et al both provided the needed epidemiological confirmation of a cause and effect between asbestos exposures and mesothelioma. They also confirmed that asbestos was causing various other diseases and that it was not just a disease of asbestos miners but also of manufactures and end-product users of asbestos. Later that same year, in 1964, Dr. Selikoff and his colleague Dr. Jacob Churg, a pathologist, chaired a meeting sponsored by the New York Academy of Sciences were scientists, industrialists, unionists, academics, media experts from around the world came together to discuss asbestos and its biological effects. This meeting confirmed that any mere numeric guidelines for reducing dust were insufficient for preventing all of the asbestos-induced diseases. That no safe exposure to asbestos exists was discussed. G.G. Addingley of British Belting and Asbestos Ltd. from Cleckheaton, England said: “I would just like to make one point. Dr. Roach said that in Britain mention is made of a safe limit of four fibers per milliliter, and that this is lower than the American limit. I would like to say that this is the first time that any limit has been specifically stated as far as the United Kingdom industry is concerned. We do not believe there is any safe limit. We have our ideas as to how low we can get and we are always striving to get right down to zero. We also have our ideas about the American limit of 5 million particles per cu. ft. as a safe limit. We know that there is no scientific basis for that limit whatever, and I think that if Dr. T. Hatch had been here he would have agreed with that, because it has been taken up with him in the past. Therefore, I would like it to be clearly understood that we do not accept four fibers per cc. as a safe maximum limit in the asbestos industry.” At this same conference John Wells of U.S. Rubber Co., Newnan, Ga., USA said: “In terms of what has been considered a safe dust count in the area, we started out with a theory – because everybody said it was so – that 5 million particles per cubic foot was a safe figure. Our own conclusion, as we began seeing what was happening in our own process, was that the only safe amount of asbestos dust exposure was zero and that the efforts in terms of achieving that lay basically in engineering, and, secondly, in education. But as far as a safe level of asbestos dust is concerned, our own conclusion in Hogansville, Ga. [USA], is that there is no safe level. The safe level is nil and anything above the safe level represents certain risk.” S. A. Roach (University of London, London, England) followed this: “I should like to say that the standards which we mentioned, four fibers per milliliter or 5million particles per cu. ft., are simply standards, although I hope I did not use the word “safe.” These are standards, which are actually used, although they are not ever expressed as being safe standards. A further standard has been mentioned of 50 to 60 million particles per cu ft. years. I supposed this is the equivalent of some 2 million particles per cu ft. concentration. This would

1. Epidemic to Pandemic: Asbestos in Our World – R. Lemen

be another standard which might be used but it is not necessarily a perfectly safe level of dust.” (Selikoﬀ & Churg, 1965) Additionally, it was shown that residents living around sources of asbestos as well as family members of asbestos exposed workers were developing asbestos-induced cancer and thus at risk (Selikoﬀ & Churg, 1965). Asbestosrelated diseases were now recognized as a community problem, not restricted to just the workplace, but to increase the risk of anyone who came into even minimal contact with asbestos’ deadly fibers and that current standards and guidelines were not without risk.

3. Acting towards Occupational Safety In part, as a result of the publicity surrounding the adverse health eﬀects of asbestos, as well as the growing number of other occupationally induced diseases and injuries in the United States, the U.S. moved forward like most other western countries had already done in promulgating an all encompassing Occupational Safety and Health Act in 1970.

First norm, enforced by NIOSH – 1972

Under this Act, the very first recommendation and standard promulgated was for asbestos, but like all the previous guidelines, for asbestos, it did not claim to eliminated the carcinogenic risks from exposure to asbestos and was only designed for the prevention of asbestos’ non-carcinogenic eﬀects, such as asbestosis (NIOSH, 1972; OSHA, 1972). This standard was similar to most others in the world at the time. However, it became known that both the recommendation and the standard were based on flawed data thus a new revised recommendation was made, by NIOSH, to the Occupational Safety and Health Administration concluding that the only way to eliminate the risk of asbestos-related cancers was to ban the all uses of asbestos in the workplace. But if that was not to be achieved, a new guidance limit of 0.1 fibers/cc greater than 5 µm was recommended. This concentration, of 0.1 fibers/cc greater than 5 µm , was not based on health eﬀect, rather on the ability of the analytical technique of the time used for compliance, the phase contrast microscope methodology

§3. Acting towards Occupational Safety

of fiber counting to detect, with any statistical accuracy, that concentration. Because of the microscope’s resolution any lower concentrations would not be accurate. This did not mean that concentrations less than 0.1 or fibers under 5 µm in length were harmless but that because of the resolution using the standard phase contrast microscope techniques would not be able to see them adequately for counting purposes. To my knowledge this was the first call, by a governmental agency, for a ban on the use of asbestos (NIOSH, 1976). This concentration now represents the current workplace standard in the United States and many other countries of the world that have not banned the use of asbestos altogether.

First Call for workplace Asbestos Ban – 1976

This same year the International Agency for Research on Cancer (IARC) developed its first monograph devoted solely to asbestos with Monograph 14 (IARC, 1976).

Monography 14 on Asbestos, IARC – 1976

1. Epidemic to Pandemic: Asbestos in Our World – R. Lemen

4. Today’s state of knowledge Now with a brief history of knowledge concerning the health eﬀects of asbestos and how that knowledge developed, this brings me to the discussion of this paper – Where are we today? To answer this let us study five questions: 1. Is there really a pandemic of asbestos diseases occurring? 2. Are asbestos diseases declining in most parts of the world? 3. Is production and consumption decreasing? 4. Have high exposures been eliminated? 5. Is exposure to the most common form, chrysotile asbestos, safe? 1) Is there a pandemic of asbestos diseases occurring today? The World Health Organization (WHO) estimates 107,000 people will lose their lives to an asbestos-related disease each year. This is most likely an underestimate as asbestos-related cancers such as laryngeal and ovarian cancers are not included in the estimate (Stayner et al., 2013). World Asbestos Disease Estimates – Mesothelioma Highest incidence/ 100,000 - Italian Genoa Province – 5.8 - West Cape Australia – 4.7 - Northern Yorkershire – 4.2 - Northern Ireland – 4.0 - Scotland – 3.6 - France – 1.3 [pleural only] - U.S.A. – 0.9 [pleural only] Age-Adjusted death rate/million Worldwide = 4.9 UK (highest) = 17.8 Australia = 16.5 Italia = 10.3 France = 7.6 U.S.A. = 5.0

Total 92,253 13,517 3,747 3,706 6,608 17,062

M/F 3.6:1 5.7:1 5.4:1 2.4:1 3.4:1 4.2:1

Mean Age 70.0 71.3 71.3 71.2 71.8 72.8

Sources : Stayner, Welch, Lemen, 2012; Delgerman et al, 2011; Bianchi & Bianchi, 2007.

Â§4. Todayâ€™s state of knowledge

Does this constitute a pandemic? Pandemic is defined as the excessive occurrence of a disease in a large portion of the world. Therefore, when comparing this to 14,142 deaths reported from H1N1, by the WHO from around the world, then 107,000 deaths occurring each year in almost every continent of the world would also constitute a pandemic. World statistics show the five highest incidences of mesothelioma in descending order occurring in Genoa Province of Italy at 5.8/100,000, then 4.7/100,000 in the West Cape of Australia, then 4.2/100,000 in Northern Yorkshire, UK, then 4.0/100,000 in Northern Ireland, and fifth 3.6/100,000 in Scotland. The worldwide ageadjusted death rate per million is 4.9 overall with the highest in the UK of 17.8, followed by Australia at 16.5 and then Italy with 10.3. For reference purposes the rate in France is 7.6 and in the U.S. 5.0. However, there is a vast amount of the world for which no data are available and where data exist the rates vary tremendously having a span of more than 3 orders of magnitude. Thus a clear understanding of the magnitude of asbestosâ€™ disease statistics is elusive (Stayner et al., 2013; Delgerman et al., 2011; Bianchi & Bianchi, 2007). 2) Are asbestos diseases rates declining in most parts of the world? Overall the data show a continuing upward trend of disease worldwide. But if looking at all country data combined a slowing trend of disease is suggested, however, this is not the case overall, as in Asia, a major market continues for asbestos usage. Brazil, the third largest producer of chrysotile asbestos remains a major consumer, while Mexico, also a large consumer, is experiencing increasing mesothelioma deaths. However, Russia the largest producer and consumer of chrysotile asbestos lack reliable statistics, which is true for other large consumers of asbestos such as Kazakhstan, China, India and Thailand. Most of the statistics (88%) come from upper income countries. If we look at time trends, a shift of disease burden is seen slowly moving to countries still consuming asbestos most recently (Stayner et al., 2013). However, from compensation program data, we find the disease asbestosis still occurring in China, Indonesia, Japan, Korea, Malaysia, Philippines, Singapore and Thailand, which signifies large exposures and lack of controlled use. A study of asbestos miners and millers in India shows an 11.5% prevalence of the non-malignant disease asbestosis (Takahashi & Karjalainen, 2003).

1. Epidemic to Pandemic: Asbestos in Our World – R. Lemen

Evolution of mesothelioma Incidence (by continent)

3) Is production and consumption of asbestos decreasing? Worldwide consumption of asbestos has change dramatically during the last century, peaking in the 1980s. This drop coincided with eﬀorts by both Western Europe and North America to limit asbestos use and “perhaps as importantly, with demonstrated liability of the manufacturers for cancers due to asbestos exposures” (Stayner et al., 2013). Consumption in Eastern Europe, South America and Asia have continued to increase with the leading consuming nations, since 1995, to be Russia and China followed by Brazil, Thailand, Kazakhstan, India, Ukraine, and Iran. By 2010 China was the largest consumer followed by India. Russia remains the largest producer in the world, followed by China, Brazil, and Kazakhstan. The worldwide production in 2011 was around 2 million metric tons (Stayner et al., 2013).

§4. Today’s state of knowledge

Main producing countries of chrysotile: (2008: Thousands of Metric Tons) Russia, China, Brasil, Kazakhstan, Canada, Zimbabwe, Colombia.

4) Have high exposures been eliminated? High exposures will continue to occur as untrained workers are employed to work with asbestos and lack of controls continue to exist in the importing markets. Most of the importing markets lack worker training and lack occupational or environmental laws or if present are not enforced. Because of the ubiquitous nature of asbestos throughout the world, continued exposures will occur due to mass catastrophic events such as earthquakes, tornados, terrorist’s attacks or any uncontrolled event where in-place asbestos is disturbed and released. Examples are common such the 9/11 attacks in New York; the earthquakes at Christ Church New Zealand, China, Iran; tornado’s such as in Joplin Missouri in the U.S. last year or the eﬀects from Hurricane Sandy that swept the East Coast of the United States recently. All of these events have released thousands of tons of asbestos into the atmosphere putting first responders, residents, cleanup workers and multiple others at risk of disease from massive exposures to asbestos.

1. Epidemic to Pandemic: Asbestos in Our World â€“ R. Lemen

9/11 Attack in New York

Additionally, many asbestos producing or using companies have gone out of business and in their wake leaving multiple areas of waste sites unremediated thereby allowing thousand of nearby residents and future developers of these sites at risk from exposures. This is true in areas of the United States in Libby Montana where W.R. Grace left their mines after distributing thousands of tons of waste materials containing tremolite asbestos throughout the city and its surrounding areas. The North West Cape of South Africa, near the city of Kuruman, is a vast un-remediated waste area where several hundred thousand residents are at risk from environmental exposure and where the mesothelioma rate is becoming one of the highest in the world as a result. As the world allows continued production of asbestos particularly targeting developing world countries, these situations will only grow in size along with their resulting devastation from diseases and death.

§4. Today’s state of knowledge

Crocidolite Asbestos Waste Near Kuruman, South Africa, 2009

5) Is exposure to chrysotile safe? Chrysotile the most commonly used asbestiform variety accounts for some 95%+ of asbestos ever used. When compared to the amphiboles, chrysotile fibers are generally finer having high flexibility along with good heat resistance. It is commonly referred to as white asbestos (Campbell et al., 1977; Liddell and Miller, 1991; Selikoﬀ and Lee, 1978). Chrysotile-tremolite contamination has been a matter of debate but in reality is dependent upon the geographic source of chrysotile occurrence. In fact most deposits of chrysotile contain trace amounts of tremolite. Canadian chrysotile is found contaminated with fibrous tremolite (Liddell et al., 1998) but considered to be by less than 1% (Tossavalinen et al., 2000). The world’s largest deposits of chrysotile asbestos are found in Russia at the Bazhenovsk deposit in the town of Asbest close to Ekaterinburg City and account for 20% of the world production (Tossavainen et al., 2000). This mining area has been mined since 1889 and samples take and analyzed found only chrysotile with no amphibole minerals detected. However lung tissue analysis of persons in this area have found tremolite (Tossavainen et al., 1996).

1. Epidemic to Pandemic: Asbestos in Our World â€“ R. Lemen

Russian Asbestos Mine

A similar finding was reported in China from an analysis of lung tissue from 6 Chinese chrysotile miners that found tremolite asbestos (measuring about 0.002 to 0.310w-% lung tissue) in every sample. However, Yano et al (2001) reported not contamination in the chrysotile asbestos used in their Chinese study were two mesothelioma were reported. Few studies have examined impurities of Chinese chrysotile, with the exception of qualitative analyses of the Qilian mine which showed â€œlittle amountâ€? of amphibole and the Chaoyang mine, Liaoning province that also found a small amount of tremolite (Tossavainen et al., 2001). The problem with making any connection between the chrysotile used in the textile mill studied by Yano et al. and the findings of Tossavainen et al. have been in tracing the exact source of chrysotile used in the textile mill. Zimbabwe, a major producer of chrysotile asbestos, did not found tremolite in samples taken for an epidemiology study (Cullen and Baloyi, 1991; Baloyi, 1989). Analysis of some standard reference samples from Zimbabwe have found anthophyllite, however, like the general mine samples from China the relationship between the Zimbabwe reference samples and the chrysotile from the Cullen and Baloyi study have not been linked. Samples taken from another major deposit of chrysotile, in a mine and mill near Balangero, Italy, no tremolite was detected in any of the samples of chrysotile (Piolatto, 1990; IARC, 2012). Therefore, using epidemiology alone to determine the role of tremolite in the etiology of chrysotile-related mesothelioma remains an enigma. By using more of the scientific tools available to the epidemiologist such as toxicology, a better understanding of the role of chrysotile in the risk

Â§4. Todayâ€™s state of knowledge

of asbestos-related diseases can be learned. Early toxicology studies of chrysotile-exposed animals, by Simson (1928), reported fibrosis and golden yellow bodies in the lungs of guinea pigs similar to those found in humans. Continuing results from animal bioassays built a strong case for the adverse toxicity of chrysotile. Wagner, the same pathologist involved in the report on the 33 cases of mesothelioma from South Africa in 1960, later joined the U.K.s Medical Research Council (MRC) in Penarth, England, and he and his colleagues found that a commercial grade, predominantly short fiber Canadian chrysotile, used primarily for paint and plastic tile fillers, induced mesotheliomas when injected intra-pleurally into rats, and induce primary lung neoplasm when the animals are exposed by inhalation. Wagner and his colleagues concluded not only does it appear that chrysotile is as potent as crocidolite and the other amphiboles in inducing mesotheliomas after intrapleural injections, but equally potent in inducing pulmonary neoplasm after inhalation exposure (Wagner et al., 1973; Wagner et al., 1974). In terms of degree of response related to the quality of dust deposited and retained in the lungs of rats, chrysotile appears much more fibrogenic and carcinogenic than amphiboles (Wagner et al., 1974). Experimental evidence connected with epidemiologic evidence support the role of all fiber types, including chrysotile, in the etiology of lung cancer and mesothelioma along with other cancers (IARC, 2012). While most of these studies are of cohorts of workers who were exposed to chrysotile mixed with other amphibole fibers or contaminated with low levels of tremolite, several cohorts not containing significant contamination have revealed a substantially increased risk of mesothelioma. These include Piolatto and his associates in Italy; Cullen and Baloyi of Zimbabwean miners; Rogers et al. in Australia; Yano et al. in China; Camus et al. in Canada; Nokso-Kollvisto and Pukkala in Finland; Mancuso in the U.S.; Robinson et al. in the U.S.; Dement and Brown in the U.S.; and Strum et al. in Germany. Rogers and colleagues (1991) examined 221 cases of definite or probably mesothelioma from the Australian Mesothelioma Surveillance Registry between 1980 through December 1985 in which two cases were reported to have only chrysotile found in their lungs and with a history of chrysotile exposure only. Yano and his colleagues (2001) conducting a 25-year longitudinal study of workers, in China, exposed to amphibole-free chrysotile reported two mesotheliomas, one pleural and the other peritoneal. Camus et al. (1998) compared mortality among women in two chrysotile asbestos mining areas in the Province of Quebec with the mortality among women in 60 control areas. While focusing on lung cancer mortality, the authors also reported a statistically significant increase in mesotheliomas, as evidenced by an SMR of 7.63 (95% confidence interval (CI) = 3.06 to 15.73). Nokso-Kollvisto and Pukkala (1994) examined a cohort of 8,391 members

1. Epidemic to Pandemic: Asbestos in Our World â€“ R. Lemen

of the Finnish Locomotive Driversâ€™ Association during the years 1953 and 1991 finding a statistically significant four-fold risk of mesothelioma while another study of railroad workers, in the U.S., predominantly, exposed to chrysotile asbestos, by Dr. Thomas Mancuso arrived at similar conclusions (Mancuso, 1988). Out of a his cohort of 181 persons, there were 156 deaths, 14 of which were identified as mesotheliomas constituting 34 percent of all cancer deaths in the study. Robinson and her colleagues (1979) studying workers employed in an asbestos textile, friction and packing manufacturing facility in the U.S. utilized 99% chrysotile asbestos observed 17 deaths from mesothelioma, representing 4.3% of the deaths. Also in the U.S., Dement & Brown (1993), in a cohort of chrysotile textile workers, found an overall excess of respiratory cancer with and SMR of 2.25 (95% CI = 1.85-2.71) and an SMR of 2.24 (95% CI =1.83-2.72) for pleural mesothelioma. In Germany, Sturm and colleagues (1994) reviewed 843 cases of mesothelioma, recorded in the German Federal State of Saxony-Anhalt between 1960 and 1990, found 67 cases, representing 14% of the total, were directly attributable to sole exposure from chrysotile asbestos. Taking both animal studies and human epidemiology together, Kuempel and her colleagues from NIOSH (2001), concluded chrysotile toxic doses (TDs) in rats compared to humans found the rat-based risk estimates for lung cancer were reasonably concordant to those for the Canadian miners/millers studies and that when compared to textile workers were much higher indicating greater sensitivity in humans. Chrysotile fibers are shown to be much more chemically and biologically reactive than amphibole fibers and because of this reactivity in the tissues, they lose their structural elements and divide into smaller fibrils, making their recognition diďŹƒcult by the usual analytical methods. In fact, many of these fibers are removed from the lung and exhaled back through the bronchi or removed by the lymphatic system to other organs of the body (Marten et al., 1989; Davis, 1979; Davis et al., 1986a; and Davis et al., 1986b). After 24 months of inhalation exposures, concentrations of dust in the lungs of rats exposed to Canadian chrysotile was only 1.8% - 2.2% compared to the dust concentration of the lungs of animals exposed to amphiboles had lung tumor incidence and degree of pulmonary fibrosis similar in each group. These findings support the idea that chrysotile fibers cause more cellular injury, fibrosis and lung cancer, than amphiboles, while being less readily detected in the tissue after the damage is done. Churg et al. (1989a) concludes that the failure of chrysotile to accumulate in the lung is a result of preferential chrysotile clearance during the first few days to weeks after exposure and that dissolution plays no role in the clearance and that the preferential clearance may be a result of fragmentation and rapid removal of the chrysotile fibers. Such opinion is also supported by Roggli et al. (2002) and others that

§4. Today’s state of knowledge

chrysotile does not accumulate in lung tissue due to breakdown of the fibers into smaller fibrils that rapidly clear from the lung. Shorter chrysotile fibers are missed by techniques counting only fibers longer than 5 µm in length. The long, thin chrysotile fibers are likewise missed, because of the inability of the phase contrast or the scanning electron microscope (SEM) to detect their presence. Therefore using lung fiber burden is a poor indicator for determination of overall chrysotile exposure. This necessitates analysis of other body tissue in order to address the question of total body burden from chrysotile. Suzuki et al. (1998) support this conclusion. Their study of 92 consecutive cases of mesothelioma identified the major asbestos fiber type in mesothelial tissue was chrysotile as compared with its presence in the lungs from the same cases (79.0% vs. 28.3% respectively). McDonald et al., (2001), suggest, because of the low biopersistence of chrysotile in the lung, that autopsy data cannot be reliably used to evaluate the contribution of this fiber type [chrysotile] in the etiology of mesothelioma, however, they contend “. . . to the extent that tremolite is a valid marker, our results suggest that [chrysotile’s role] is small.” This later assumption, by McDonald et al., has validity problems because by using tremolite lung burden as the marker for chrysotile exposure without comparison to other tissue burdens to assess the prominent fiber type, nor evaluating the distribution of fiber type within the asbestos containing dusts at time of inhalation, there is no scientific support or foundation for their assumption. Additional experimental evidence by Malorni et al. (1990) suggests that chrysotile fiber penetration can rearrange the cytoskeletal apparatus of the cell thus indicating an interaction between the chrysotile fibers and the normal mitotic process, since giant multinucleated cells are formed. They also indicate “Small chrysotile fibers could also be found inside the nucleus of interphase cells.” and “that small fibers remain associated with the cytoskeletal framework, which can thus play a role in asbestos intracytoplasmic translocation in the epithelial cells.” Churg et al. (1989) referring to chrysotile fibers suggests, “if fibrotic areas retain relatively greater numbers of short fibers, and if such fibers are themselves fibrogenic then a feedback loop associating short fibers with fibrosis is established (albeit if only long fibers are fibrogenic, the same feedback loop will exist). This question deserves further study.” While it is impossible to have a complete understanding of the mechanisms of cancer causation, the biologic findings known about the various asbestos fiber types and how they cause disease are consistent with the postulate that the chrysotile asbestos form are capable of producing mesotheliomas. First, it is known that it is not the chemical composition alone of the various asbestos fibers that are important in disease production but that morphology, their shape and size, play a primarily role. Many researchers

1. Epidemic to Pandemic: Asbestos in Our World – R. Lemen

contend that the potency of crocidolite is related to its thin diameter but similarly chrysotile fibers cleave longitudinally creating extremely thin fibrils. Second, it is universally accepted that chrysotile asbestos is carcinogenic and capable of causing or contributing to the development of lung cancer (IARC, 2012). Third, mesotheliomas develop in the pleura, peritoneum and other serosal surfaces of the body. While it is universally accepted that chrysotile is a cause of cancer in the lung, it is also universally recognized that chrysotile has much less bio-persistence in the lung and migrates to the mesothelial linings within the body (Kohyama & Suzuki, 1991; Suzuki et al., 1998; Sebastien et al., 1980). Sebastien et al. (1980) found that all the fibers in the pleural were chrysotile while there was no predominance in the parenchymal (lung) samples, concluding that lung parenchymal retention is not a good indicator for total body burden of asbestos fiber retention. Translocation of asbestos fibers to other organs is well documented (Lemen & Dodson, 2012). Further supports for the role of chrysotile asbestos in mesothelioma induction come from Suzuki and Yuen (2002), evaluating a series of 168 cases of mesothelioma: “1. Asbestos fibers were present in almost all of the lung and mesothelial tissues from the mesothelioma cases. 2. The most common types of asbestos fibers in lung were either an admixture of chrysotile with amphiboles, amphibole alone, and occasionally chrysotile alone. In mesothelial tissues, most asbestos fibers were chrysotile. 3. In lung, amosite fibers were greatest in number followed by chrysotile, crocidolite, tremolite/actinolite, and anthophyllite. In mesothelial tissues, chrysotile fibers were 30.3 times more common than amphiboles. 4. In some mesothelioma cases, the only asbestos fibers detected in either lung or mesothelial tissue were chrysotile fibers. 5. The average number of asbestos fibers in both lung and mesothelial tissues was two orders of magnitude greater than the number found in the general population. 6. The majority of asbestos fibers in lung and mesothelial tissues were shorter than 5 µm in length.” In conclusion, chrysotile is carcinogenic and is present in high concentrations in the mesothelial linings where the mesothelioma is induced, supports the biological plausibility that it causes mesothelioma. This is also confirmed through many mechanistic and molecular studies that indicate how chrysotile may cause mesothelioma. Fiber penetration can rearrange the cytoskeletal apparatus of the cell and this is an indication of an interaction between the chrysotile fibers and the normal mitotic process, since giant multinucleated cells are formed. These studies indicate that chrysotile penetrates the cell, enters the nucleus and induces abnormal chromosome formations in dividing

§4. Today’s state of knowledge

cells (Malami et al., 1990). Some of these abnormalities include the deletion of the P53 gene growth (Leversse, 1997). Inhaled chrysotile asbestos induced, at the fiber deposition sites, the expression of p53 protein (Mishra et al., 1997), which suggests that the p53 protein can accumulate in the lung tissue after chrysotile exposure. Additionally, a study of the phosphorylation of the p53 protein in A549 human pulmonary epithelial cells, exposed to asbestos, found that chrysotile asbestos, on a per-weight basis, was more potent inducing Ser15 phosphorylation and accumulation of the p53 protein than was crocidolite (Matsuoka et al., 2003). Further study indicates particle stimulation chemiluminescence (CL) production by polymorphonuclear leuocytes, used to evaluate the pathogenicity of mineral fibers by understanding that reactive oxygen metabolites, as measured by CL, are etiopathogenically related to fiber toxicity. These findings may indicate that neither the total number nor the specific range of fiber dimensions are solely determinate of the CL production but that other physiochemical factors, like surface reactive characteristics of the milled fibers may also play a role in the etiology of disease (Iwata & Yano, 2003). Pott (1994) has questioned fiber dimension as a reliable yardstick for the carcinogenic dose and that inhalation studies in rats, as a surrogate for human inhalation eﬀects, are misleading in that rats are known obligatory nose breathers. Such findings bring into question the Stanton et al. (1981) hypothesis on fiber diameter and length being the only determinates of the carcinogenicity of fibers. Pott (1993, 1994) also indicates that when reviewing the carcinogenicity studies of rats preformed by both inhalation or intra-cavitary injection using chrysotile, amosite and crocidolite fibers that the results gave no clear indication of a lower carcinogenic potency per chrysotile fiber than per amphibole fiber when equal fiber numbers and fiber sizes are applied, although the fiber content of the lungs were low. Pott (1994) additionally addresses the use of intrapleural and intraperitoneal routes in examining the carcinogenic potential of inorganic fibers, which has been criticized emphatically, concluding that the consistency of such an argument is not supported. As an example, he points to the findings of inhalation studies with crocidolite that don’t result in either lung tumors or mesothelioma, even though the fiber concentrations in the lung are very high. Finally, observations from chrysotile asbestos epidemiological combined with the results of the experimental studies (in vivo and in vitro) leave no doubt that scientific evidence supports the carcinogenic role of chrysotile asbestos alone in the induction of mesothelioma (Lemen, 2004; IPCS, 1998; IARC, 2012). It is additionally important to note epidemiology observations from mixed asbestos fiber cohorts have shown greater mesothelioma risk than exposures to amphibole or chrysotile exposed cohorts alone (Lemen & Dodson, 2012). Lenters et al. (2011) conclude, “Potency diﬀerences for predominantly chrysotile versus amphibole asbestos-exposed cohorts become

1. Epidemic to Pandemic: Asbestos in Our World – R. Lemen

diﬃcult to ascertain when meta-analyses are restricted to [in] studies with fewer exposure assessment limitations.” These data leave no doubt that persons predominately exposed to chrysotile have been observed to be at an increased risk of all asbestos-related diseases including mesothelioma (IARC, 1976; IPCS, 1998; IARC, 2012).

5. Conclusion and summation – Is there really a pandemic of asbestos-related diseases? Yes. – Aren’t asbestos diseases declining in most parts of the world? No. – Is production and consumption of asbestos decreasing? Not much and actually increasing in some developing parts of the world. – Have high exposures been eliminated? No. – Is exposure to chrysotile safe? No. – What should we expect from the future? After bans are enacted asbestos-related diseases will begin to decrease beginning some 10-20 years later, however they will never become extinct until all asbestos has been eliminated or placed completely under control so that no exposures occur and even then it will be decades before the asbestos-disease rates will begin to approach nil. The production of asbestos worldwide must be stopped and all countries must cease using asbestos and we should continue to push for a worldwide ban on asbestos mining, production and usage. – How can we stop the pandemic of asbestos-related diseases? Several steps can be taken. As such I have formulated a plan to follow based on guides as described in the acronym: B-R-A-K-E-S:

Ban asbestos, Recognize all uses of asbestos, Access all sources and potential for asbestos release, Keep records of these asbestos sources and continue monitoring, Eliminate all of the asbestos sources and uses and then continue, Surveillance for asbestos-related diseases to evaluate eﬀectiveness and compliance with a ban.

§6.

The pandemic of asbestos-related diseases can be stopped and by applying the BRAKES , as I suggest is one way to do so. Let us all participate in such actions and continue or vigilance for an eﬀective worldwide ban on asbestos. Received 19 August 2013

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36. Mancuso T, 1988. Relative Risk of Mesothelioma Among Railroad Machinists Exposed to Chrysotile. Am J Indus Med. 13: 639-657. 37. Mancuso TF, Coutler EJ, 1963. Methodology in industrial health studies. The cohort approach, with special reference to an asbestos company. Arch Environ Health, Feb.; 6: 210-226. 38. Marten M, Dirksen M, Puschel K, Lieske K, 1989. Distribution of asbestos bodies in the human organism. Der Pathologe. 10: 114-117. 39. Matsuoka M, Igisu H, Morimoto Y, 2003. Phosphorylation of p53 protein in A549 human pulmonary epithelial cells exposed to asbestos fibers. Enriron Health Perspect. Apr; 11(4): 509-512. 40. McDonald JC, Armstrong BG, Edwards CW, Gibbs AR, Lloyd HM, Pooley FD, Ross DJ, Rudd RM, 2001. Case-referent survey of young adults with mesothelioma: I. Lung fibre analyses. Ann Occup Hyg. Oct; 45(7): 513-518. 41. Merewether ERA, 1949. Annual Report of the Chief Inspector of Factories for the year 1947, HMSO, London: 78-79. 42. Merewether ERA, Price CW, 1930. Report on the effects of asbestos dust on the lungs and dust suppression in the asbestos industry I. Occurrence of pulmonary fibrosis and other pulmonary affections in asbestos workers II. Processes giving rise to dust and methods for its suppression, H.M. Stationery Office, London. 43. Mishra A, Liu JY, Brody AR, Morris GF, 1997. Inhaled asbestos fibers induce p53 expression in the rat lung. Am J Respir Cell Mol Biol. Apr; 16(4): 479-485. 44. Murray HM, 1907. Statement before the committee in the minutes of evidence, in Report of the Departmental Committee on Compensation for Industrial Disease, London, H.M. Stationery Office: 127. 45. NIOSH, 1972. Criteria for a recommended standard . . . Occupational Exposure to Asbestos. National Institute for Occupational Safety and Health. HSM 7 10267, second printing. U.S. Department of Health, Education, and Welfare, Public Health Service, Center for Disease Control. 46. NIOSH,1976. Revised Recommended Asbestos Standard. DHEW(NIOSH) Publication 77169. U.S. Department of Health, Education, and Welfare, Public Health Service. Centers for Disease Control. National Institute for Occupational Safety and Health.

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47. Nokso-Koivisto P, Pukkala E, 1994. Past exposure to asbestos and combustion products and incidence of cancer among Finnish locomotive drivers. Occup Environ Med. 51: 330-334. 48. OSHA, 1972. Standard for exposure to asbestos dust. Federal Register, 37 (110), 11318–11322. 49. Piolatto G, Negri E, La Veccia C, Pira E, Decarli A, Peto J, 1990. An update of cancer mortality among chrysotile asbestos miners in Balangero, Northern Italy. Br J Ind Med. 47: 810-814. 50. Pott F, (Personal Communication), 1993. Dr. F. Pott to Dr. Richard A. Lemen, Deputy Director, National Institute for Occupational Safety and Health, Building 1, Room 3007, 1600 Clifton Road, Atlanta, GA 30333. November 9. Medizinisches insitut fur Umwelthygiene an der Helnrich-Heine-Universitat Dusseldorf, PO Box 10 37 61. 51. Pott F, 1994. Asbestos use and carcinogenicity in Germany and a comparison with animal studies. Ann Occup Hyg. Aug; 38(4): 589-600. 52. Robinson CF, Lemen RA, Wagoner JK, 1979. Mortality patterns, 19401975 among workers employed in an asbestos textile friction and packing products manufacturing facilities. In: Lemen, R.A. and Dement, J.M. (eds.), Dust and Disease. Pathotox Publishers, Park Forest, IL: 131-143. 53. Rogers AJ, Leigh J, Berry G, Ferguson DA, Mulder HB, Ackad M, 1991. Relationship Between Lung Asbestos Fiber Type and Concentration and Relative Risk of Mesothelioma, A Case-Control Study. Cancer. 67(7): 1912-1920. 54. Roggli VL, Sharma A, Butnor KJ, Sporn T, Vollmer RT, 2002. Malignant mesothelioma and occupational exposure to asbestos: A clinicopathological correlation of 1445 cases. Ultrastruc Pathol. 26: 55-65. 55. Sebastien Pl, Janson X, Gaudichet A, Hirsch A, Bignon J, 1980.Asbestos retention in human respiratory tissues: comparative measurements in lung parenchyma and in parietal pleura. IARC Sci Pub. 30: 237-246. 56. Selikoff IJ, Churg J (Eds.), 1965. Biological effects of asbestos. NY Acad Sci, 132: 1–766. 57. Selikoff IJ, Churg J, Hammond EC, 1964. Asbestos exposure and neoplasia, JAMA, 188: 22-26. 58. Selikoff IJ, Lee DHK, 1978. Asbestos and Disease. Academic Press, Inc. New York, San Francisco, London; 1-559.

1. Epidemic to Pandemic: Asbestos in Our World – R. Lemen

59. Simson FW, 1928. Pulmonary asbestosis in South Africa [abstract]. Brit Med J. May 26: 885-887. 60. Stayner L, Welch LS, Lemen R, 2013. The worldwide pandemic of asbestos-related diseases. Annu Rev Public Health. Eds. JE Fielding, RC Brownson, LW Green. 34: 4.1-4.12. 61. Sturm W, Menze B, Krause J, Thriene B, 1994. Use of asbestos, health risks and induced occupational diseases in the former East Germany. Toxicology Letters. 72: 317-324. 62. Suzuki Y, Yuen S, Ashley R, Calderato A, 1998. Asbestos fibers and human malignant mesothelioma. Advances in the Prevention of Occupational Respiratory Diseases, Eds. K Chiyotani, YI Hoaoda & Y Aizawa, Elsivier Science B.V.: 709-713. 63. Suzuki Y, Yuen SR, 2002. Asbestos fibers contributing to the induction of human malignant mesothelioma. Ann NY Acad Sci, 982: 160-176. 64. Takahashi K, Karjalainen A. 2003. A cross-country comparative overview of the asbestos situation in ten Asian countries. Int J Occup Environ. Health. 9(3): 244–48. 65. Tossavainen A, Kotilainen M, Takahaskhi K, Pan G, Vanhala E, 2001. Amphibole fibres in Chinese chrysotile asbestos. Ann Occup Hyg: 45(2): 145-152. 66. Tossavainen A, Kovalevsky E, Vanhala E, Tuomi T, 2000. Pulmonary mineral fibers after occupational and environmental exposure to asbestos in the Russian chrysotile industry. Am J Indust Med, 37: 327-333. 67. Tossavainen A, Riala R, Kämppi R et al, 1996. Dust Measurements in the Chrysotile Mining and Milling Operations of Uralasbest Company, Asbest, Russia Finnish Institute of Occupational Health, Finland, National Institute for Occupational Safety and Health, Morgantown, USA, Russian Academy of Medical Sciences, Institute of Occupational Health, Moscow, Russia and Medical Research Center for Prophylactic and Health Protection of Industrial Workers, Ekaterinburg, Russia. Helsinki. 68. Tweedale G, 2000. Magic Mineral To Killer Dust - Turner & Newall and the Asbestos Hazard. Oxford University Press. 69. Wagner JC, Berry G, Skidmore JW, Poole FD, 1979. The comparative eﬀects of three chrysotiles by injection and inhalation in rats. Biological eﬀects of mineral fibres. Vol. 1, International Agency for Research on Cancer, Lyon, IARC Scientific Publications No. 30, World Health Organization: 363.

§6.

70. Wagner JC, Berry G, Skidmore JW, Timbrell V, 1974. The eﬀects of the inhalation of asbestos in rats. Brit J Cancer. 29(3): 252-269. 71. Wagner JC, Berry G, Timbrell V, 1973. Mesothelioma in rats following inoculation with asbestos and other materials. Brit J Cancer. 28: 173185. 72. Wagner JC, Sleggs CA, Marchand P, 1960. Diﬀuse pleural mesothelioma and asbestos exposure in the North Western Cape Province. Brit J Ind Med, 17: 260-271. 73. Yano E, Wang Z-M, Wang X-R, Wang M-Z, Lan Y-J, 2001. Cancer Mortality Among Workers Exposed to Amphibole-Free Chrysotile Asbestos, Am J Epidemiology. 154: 538-543.

Chapter 2

Mesothelioma : epidemiology and compensation. The Italian situation by Enzo MERLER The publication of the events of this day represents a good opportunity to communicate the institutional innovations, which were announced on that date in Paris, and have happened in Italy concerning the campaign against asbestos and the diseases caused by asbestos. It is also the opportunity for an update on some of the many problems which need to be dealt with better. This report is centred on an update of the epidemiological information and some aspects of the cancers caused by asbestos, because this is my field of expertise. Finally there is a detailed presentation of the Italian state of aďŹ€airs, as giving information on a single country without presenting the situation in a wider context, can nevertheless help understanding the problems caused by asbestos use.

1. The second conference on asbestos organised by the government The first innovation is the second national conference on asbestos organised by the government, which was held from 22 to 24 November 2012 in Venice, on the initiative of the Ministries of Health, Environment, Labour and Social Policies. In Italy, the decision to ban asbestos was taken in 1992 (law 257/1992). The extraction, importation and exportation, commercialisation and use of asbestos fibres for the production of manufactured goods were banned but the â€“ 35 â€“

2. Mesothelioma : epidemiology and compensation – E. Merler

law continued to authorise the retention of asbestos insulation and asbestoscement roofs (the same problem remains in the European Union after the ban was decided in 2004). Among the various commitments which should have been honoured, was that of a National Conference whose objective was to facilitate initiatives and the coordination of activities made necessary due to the large number of decisions having to be made. The first National Conference was held in Rome in 1999, that is 7 years after the ban. In the meantime legislation was adopted, part of which derived from the obligation to transpose European Union laws into Italian legislation and part was independent. It is true that in the absence of other National Conferences, it is not yet possible to check if progress has been made toward the objectives that had been set. More generally it should be noted that the Prodi government introduced, before its fall in February 2008, a new text on Health and Safety in the Workplace (legislative decree 81/2008), which contained new legal provisions on carcinogens found in the workplace: a very important law, when you recall that the previous text went back to 1956. The following government, led by Berlusconi, set a specific goal of reassessment and the legislation on carcinogens has remained largely unimplemented. There is a fundamental problem, at least in Italy, which is little debated and too rarely taken into consideration: asbestos is a priority, but is what is done for asbestos not a priority compared to what is not done for other carcinogens found in the workplace? With many years of hindsight since the ban and a few years hindsight since the new legislation of 2008, it is unfortunately possible to aﬃrm that in Italy very little is done for carcinogens other than asbestos. During these years, the urgent need to define and reach objectives on a national level on various themes arising from the legislative ban on asbestos, which modified the pre-existing legislative framework, was supported by the non-governmental conferences held in Monfalcone (November 2004) and Turin (November 2009). Asbestos legislation gives substantial powers to the regions: the activities must be programmed and prepared through the Regional Asbestos Plans. However the decentralised implementation did not materialise and the Regional Asbestos Plans were only implemented in a small number of regions. A regional law already mentioned, on the elimination of asbestos and the achievement of the objectives, has up to now only been approved by five regions (Lombardy, Liguria, Friuli-Venezia-Giulia, Piedmont and Sardinia). This aspect stands out clearly from the reviews on the regulatory framework described in the work “Stato dell’arte e prospettive in materia di contrasto alle patologie asbesto-correlate” (“State of aﬀairs and perspectives in the fight against pathologies linked to asbestos”) which will be mentioned further on.

§1. The second conference on asbestos organised by the government

The second critical problem, not solved up to now, is the lack of coordination between the Ministries of Health, Environment and Labour in Italy. It will not be possible to get rid of asbestos without a plan for an inventory and elimination of friable and bound asbestos. In Italy asbestos-cement is classified as a hazardous waste. It must therefore be disposed of in controlled dumps. Burning it is not allowed. In Italy there is a lack of authorised dumps and those that exist will be full shortly. At the moment more than 50% of the removed asbestos-cement is transferred at high cost to dumps in Germany by road transport. At the present rate, the elimination of bound asbestos will not be achieved in Italy, until the end of the new millennium, a prospect which shows that the role of public administration cannot be limited to just carrying out controls [Silvestri, 2012]. The non-governmental conferences on asbestos had set the goal of coming out of asbestos by 2015! The new conference, decided by the Monti government, certainly had its origins in the trial against the directors of the multinational Eternit, for what happened in the Italian plants of the group: the severity of the epidemiological situation generated by the industrial use of asbestos in Italy has struck entire communities (such as Casale Monferrato, where Eternit had a plant), and the recognition by the Health Minister, Renato Balduzzi, that asbestos had created a “national emergency”. The minister maintained a close relationship with the population of Casale Monferrato and the decision to favour a support scheme for the decontamination of the environment and to increase investments in research on mesothelioma played a role in the decision of Casale Monferrato community not to accept an out-of-court settlement from Stephan Schmidheiny1 . The Conference led to the drafting of a National Asbestos Plan2 which was approved at the Inter-Regional conference and presented on the 9th April at Casale Monferrato. It is now a question of implementation. This plan provides for action in the field of health (health monitoring, clinical and fundamental research, care and rehabilitation); protection of the environment (identification of the risks, speeding up of asbestos removal sites, elimination of waste); occupational safety and social security (reduction of the diﬀerence of behaviour within public structures); compensation for diseases linked to asbestos for people not covered by INAIL3 , implementation of the “Eternit” sentence. It is not easy to predict whether these objectives will succeed in being implemented and will be reached: it depends in the first instance on the 1

See the article by Bruno Pesce, this volume (editor’s note) This oﬃcial text is available on the site : http://www.salute.gov.it/imgs/C 17 pubblicazioni 1945 allegato.pdf 3 INAIL: Instituto Nazionale per l’Assicurazione contro gli Infortuni sul Lavoro – branch of the Italian social security covering work-related accidents (editor’s note). 2

2. Mesothelioma : epidemiology and compensation – E. Merler

government, the regions and the institutions. Besides, the new National Asbestos Plan has positive aspects but it also has various limits. The conference highlighted the fact that there existed in Italy good intervention and work practices, which should be extended to national level; thanks to the conference, the topic of asbestos has focused attention on the local communities that have been severely struck and has determined a higher economic commitment with financing for projects of decontamination of the environment and research projects.

2. The epidemiology of mesothelioma in Italy In preparation for the conference, the Health Minister published a work “Stato dell’arte e prospettive in materia di contrasto alle patologie asbestocorrelate” (“State of aﬀairs and perspectives in the fight against pathologies linked to asbestos”) Health Ministry publication no.15 (available at www.quadernidellasalute.it). During the conference, the “Fourth report of the National Register of Mesothelioma” was published (the previous reports are available on the website: www.ispesl.it/ReNaM, the fourth report is online at: www.inail.it). This is a report which presents and comments on the information about mesothelioma cases identified and analysed by the Regional Operation Centres (COR) which transferred the gathered data to the National Register: some for the period 1993–2008, others for the period 2000–2008. The publication of these volumes and the most recent articles in various journals allow us to establish an up-to-date picture on various aspects of the epidemiology of mesothelioma in Italy. The first three volumes of the National Register of Mesothelioma had already permitted the establishment of strong associations between the mesothelioma recorded in Italy and the many circumstances of exposure. Analyses are presented on the conditions of exposure to asbestos and the extent of mesothelioma cases for the principal situations or occupational hazards seen in Italy, that is: • environmental and domestic exposures, • among women, • in the production of asbestos-cement, • in buildings, • among employees in construction, repair and handling of railway equipment, • among employees of shipbuilding and ship repair yards,

§2. The epidemiology of mesothelioma in Italy

• among sailors, • occupational hazards in agriculture (recycling of bags having contained asbestos), • exposure in the industry of asbestos-free textile (asbestos in the brakes and drums of looms), • among employees in steel factories, • in oil refineries and the chemical industry. For various industrial sectors, these chapters were the occasion for digging into the history of these sectors of production in Italy, into their regional coordination, and the typical conditions of asbestos use. The national extension of the register of mesothelioma cases (today 95% of the Italian population is covered; the areas not covered are those which have not known a high level of industrialisation; however the quality of the register is not homogeneous and some regions are not able to achieve an exhaustive identification of new cases or to make a detailed analysis for at least 50% of the recorded cases) and the possibility these last years of using a more specific coding for the cause of death (International Classification of Diseases, ICD 10) enabled a more precise geolocation of the areas in which the highest rates were recorded and to understand the reasons. A European directive asked each member country to develop a national register of mesothelioma. To date, the countries which have implemented this directive acted independently, without any harmonisation between them. This has the negative consequence that it is impossible to produce a detailed overall analysis or a new analysis of the data. For example, the data collection that has been carried out in Germany is only for cases which were signposted to the Institute in charge of compensation in cases of occupational origin. In France, the identification and detailed analysis are only made in some territorial areas and only for pleural mesothelioma. The fourth report of the Italian National Register of Mesothelioma analyses a total of 15 845 people struck by mesothelioma at various sites (pleural, peritoneal, pericardic and tunica vaginalis testis4 ), providing an estimate of the occurrence of this pathology per site and per type, based on the data from several areas. 4

Serous membrane which envelopes the testicles (editor’s note).

2. Mesothelioma : epidemiology and compensation â€“ E. Merler

Figure 1. Mesothelioma incidence in Italy Source: Fourth Report of the National Register of Mesothelioma (ReNaM) More or less complete information was gathered on 12 065 people about previous exposure to asbestos (in 50% of cases through a direct interview of the person). The direct interview has allowed to identify more often a previous exposure to asbestos, whether occupational or of another circumstance (domestic or environmental). For 69,3% of persons of both sexes, it shows an occupational exposure to asbestos, for 4.4% domestic exposure, 4.3% environmental exposure and 1.6% exposure linked to a leisure activity. Non-occupational exposures, which were the subject of a detailed specific analysis [Mirabelli, 2010], presented a great variability in territorial areas. It was shown that they were the origin of a large number of cases of mesothelioma in the Piedmont, Lombardy, Veneto and Apulia. Figures 2-4 from the Fourth Report assess the distribution among municipalities of mesothelioma cases attributed to occupational exposure and those attributed to specific activities.

§2. The epidemiology of mesothelioma in Italy

Figure 2. Distribution among municipalities of cases recorded by ReNam with occupational exposure. Period of diagnosis 1993–2008. Mesothelioma diagnosis certain, probable or possible. All anatomical sites, men and women.

Source: Fourth Report of the National Register of Mesothelioma (page 75)

The building trade is the occupational activity where the situation is the most serious, as much for the number of mesothelioma cases as for the territorial distribution, as is shown in figure 5. It is a worrying result. The traditional sectors of activity at the origin, in Italy, of a very significant number of diseases – figures 3 and 4 relate to the production of asbestoscement and to shipyards – only explain a small proportion of mesothelioma of occupational origin arising today in Italy, because the majority of cases of mesothelioma today occur in people who have done another type of work.

2. Mesothelioma : epidemiology and compensation â€“ E. Merler

Figure 3. Distribution among municipalities of cases recorded by ReNam with occupational exposure within asbestos-cement industry. Period of diagnosis 1993â€“2008. Mesothelioma diagnosis certain, probable or possible. All anatomical sites, men and women.

Source :Fourth Report of the National Register of Mesothelioma (page 79) In Italy, a lot of construction workers have done this work for the whole of their professional life, in general as employees of small companies, often moving from one to the other over a few years. Various construction work is carried out in open air or in open spaces. With the exception of insulation workers, whose economic activity is integrated in various countries in the category of construction workers but whose work is not necessarily to insulate buildings, the contact with asbestos or

Â§2. The epidemiology of mesothelioma in Italy

with asbestos-based products in Italy happens discontinuously, occasionally, and comes from the use of mechanical tools in contact with asbestos-cement.

Figure 4. Distribution among municipalities of cases recorded by ReNam with occupational exposure within shipyards. Period of diagnosis 1993â€“2008. Mesothelioma diagnosis certain, probable or possible. All anatomical sites, men and women.

Source : Fourth Report of the National Register of Mesothelioma (page 80) In Italy, in the production of asbestos-cement materials, a mixture of fibres was always used, mostly composed of chrysotile asbestos, but with an ever-present higher percentage of amphiboles (amosite, crocidolite) in the production of some materials (ducts, pipes, flues) [Cavone D, 2010]. This assessment is confirmed by the high percentage of amphibole fibres

2. Mesothelioma : epidemiology and compensation â€“ E. Merler

found in the residual lung burden of the lungs of construction workers struck by mesothelioma [Merler E, 2009].

Figure 5. Distribution among municipalities of cases recorded by ReNam with occupational exposure within building and maintenance trade. Period of diagnosis 1993â€“2008. Mesothelioma diagnosis certain, probable or possible. All anatomical sites, men and women.

Source : Fourth Report of the National Register of Mesothelioma (page 82) It was necessary to wait for law 257 in 1992 to see the end of uncontrolled exposure to asbestos fibres in buildings and for a regulation, much more stringent than in other countries, in eďŹ€ect since then, to control the removal of materials containing asbestos and to reinforce risk prevention.

§2. The epidemiology of mesothelioma in Italy

Unfortunately the control of removal has not yet translated into a visible decrease of occurrence of mesotheliomas. It will be necessary to wait several decades for a decrease to appear [Barone Adesi, 2008; Berry, 2009]. The serious concern provoked by the frequency of mesothelioma among construction workers arises from the remark that the time it will take to change the situation is unknown and from the demonstration that relatively small and occasional occupational exposure, a typical situation for many construction workers, can – when the number of exposed employees is high – be at the origin of a very large proportion of mesothelioma cases. You can imagine what this means for countries where asbestos is not banned and where a very large proportion of the consumed asbestos is used in buildings, with a legislation that oﬀers inadequate protection and is not implemented. Geographical analysis of the death rate by mesothelioma for the period 2003–2009 shows that in Italy a large number of municipalities – precisely 263 out of a total of 8094 – show a frequency of mesothelioma among the male residents significantly higher than the expected rate calculated on the basis of regional data. Of these 263 municipalities, 61 present a gross incidence rate higher that 4 per 100 000: a number of cases are recorded which, in Italy and other countries, is typical of the exposure of employees in activities related to asbestos-use (Cf Table 6). However what is observed here is the frequency of diseases not among the cohorts of workers, but among the general population! Among this high frequency group, the upper limit is reached by 5 municipalities where an incidence rate between 15 and 82 in 100 000 is recorded. These are extraordinary figures which reveal a truly considerable variation in the frequency of the same pathology between various municipalities, as you rarely see in human populations (observing a diﬀerence in death rate from 4 in 100 000 to 80 in 100 000, is like comparing the incidence of malaria in Finland with the death rate due to malaria in Sudan!). Among these municipalities are those where asbestos-cement plants are established, which presented a death rate between 50 and 82 in 100 000 per year: Broni and Stradella (province of Pavia, region of Lombardy), for a total of approximately 20 000 inhabitants, where a Fibronit plant was established; Casale Monferrato, San Giorgio Monferrato, Rosignano Monferrato, Villanova Monferrato (province of Alessandria, region of Piedmont) for a total of approximately 40 000 inhabitants, where an Eternit plant was established.

2. Mesothelioma : epidemiology and compensation – E. Merler

Table 6. Table of mesotelioma cases among municipalities and gross incidence rate (for 100 000 residents). Only municipalities with at least 14 cases and a rate above 4, in Italy, 1993–2008, different periods of observation among regions. Source : National Register of Mesothelioma (Inail, research sector). Province / Municipality / Recorded cases MM / population (2001) / Gross rate (x 100 000) / Period of observation.

Source: Notes of Health Ministry n.15 page 8. At a lower level of incidence, with values between 20 and 50 in 100 000 per year, are the municipalities of Muggia, San Canzian d’Isonzo, Monfalcone, Ronchi dei Legionari, Gorizia (all situated in the province of Gorizia and Trieste, in the region of Friuli-Venezia-Giulia) for a total of about 60 000 people; Lerici, La Spezia, Arcola, Vezzano Ligure, Sestri Levante, Genoa (all situated in the province of Genoa, in the region of Liguria), for a total of about 750 000 inhabitants, with values between 10 and 20 in 100 000 per year. These are municipalities where the employees of some of the largest shipbuilding or repair shipyards live or where they originate from. For some of these municipalities – in particular those where plants for the production of asbestos-cement have been established – these high rates of frequency orig-

§2. The epidemiology of mesothelioma in Italy

inate in the occupational exposure of the workers employed in production, as well as environmental or domestic exposure: the production waste, made available at very low cost or even free, was used to pave public and private spaces; gigantic rubbish dumps were created; these plants caused an external pollution, etc . . . The residual pulmonary burden in fibres in a dozen people suffering from mesothelioma, and whose unique source of exposure was the fact that they lived beside the plants producing asbestos-cement in Casale Monferrato (Eternit) or Bari (Fibronit) turned out to be made of amphibole fibres in quantities similar to those of employees suffering from mesothelioma after having worked in production activities which exposed them to asbestos and proportional to the length of residence and the distance between their residence and the plant [Barbieri PG, 2012]. Levels of pulmonary burden in fibres of this type reveal a high level of environmental contamination, over a long period of time. They confirm the results of several case-control studies [Maule M, 2007; Musti M, 2003]. It is quite shocking to read that in Italy some people play down the enormity of these figures, because it represents only a small portion of the total number of cancers recorded in Italy, as is stated by Boffeta, McLaughin and La Vecchia, who declared no conflict of interests [Boffetta P, 2008, Mirabelli D, 2008]. See the quotes below (Figure 7, next page). For many years Boffetta worked for the International Agency for Research on Cancer in Lyon (IARC). Their declaration is not so surprising when you take into account the fact that Bofetta and La Vecchia play in Italy the role of consultants cited by the defence in criminal trials against employers accused of having caused cases of mesothelioma which should not have happened. There exists in Italy territorial areas with environmental pollution by asbestiform fibres (Biancavilla in Sicily; the municipalities of Castellucio Inferiore and Lauria, in the province of Potenza, in the Basilicata region). These are limited areas (Biancavilla, in the province of Catania, region of Sicily; a municipality of about 23 000 inhabitants) [Bruno C., 2007] and because of these there has been until now a few cases of mesothelioma recorded among farmers (Basilica) [Pasetto, 2004]. In this region of Sicily, measures of environmental remediation are possible and are being implemented. In conclusion these places of natural pollution by asbestiform fibres are not similar to the situation in other countries (erionite, asbestiform fibre in Turkey; Libby in the United States; New Caledonia, Greece).

2. Mesothelioma : epidemiology and compensation – E. Merler

Figure 7. Extracts of commentary and response published in Carcinogenesis, volume 29, 2008. Dario Mirabilli, Enzo Merler ‘Environment’ in cancer causation and etiological fraction : limitations and ambiguities. Carcinogenesis, vol.29 no.5 p.1083, 2008. [. . . ] In Italy, among the 3552 mesotheliomas occurring in 1993–2001 whose exposure could be assessed, ⇠10% were due to non-occupational, residential and household, exposures to asbestos. Estimates of ⇠200 mesothelioma cases per year in Great Britain, or 500 in the European Union, compared with a current yearly incidence of ⇠1000 cases in Italy, represent a huge toll for the general population, completely unaware of the exposures it was (and sometimes it still is) experiencing. Furthermore, should an RR estimate of 8.1, instead of 3.5, be applied, these figures would of course be more than doubled, so that the number of environmental cases in the European Union might approximately equal the overall mesothelioma incidence in a country like Italy. Lastly, the occurrence of environmental cases of mesothelioma is not evenly distributed. It rather interests subgroups of the general population and reflects the distribution of (mainly) past sources of asbestos pollution. In these communities, one paradigm of which may be Casale Monferrato, mesothelioma incidence may remain remarkably high even after cases related with occupational exposures have been taken into account.

Acknowledgements Conflict of interest statement: None declared. Paolo Boffetta, Joseph K. McLaughlin, Carlo La Vecchia Reply : ‘Environment’ in cancer causation and etiological fraction: limitations and ambiguities. Carcinogenesis, vol.29 no.9 p.1850, 2008. [. . . ] It should be kept in mind that, although all reasonable efforts should be made to reduce and eliminate environmental asbestos exposure, this would have a limited effect on the overall cancer burden. Mesothelioma accounts for ⇠ 1000 cases of 300 000 total cases (0.3%) in a country such as Italy and hence 10% of mesothelioma cases represent 0.03% of all cancer cases.

Acknowledgements Conflict of interest statement: None declared.

§3. The SENTIERI project

3. The SENTIERI project “The SENTIERI project concerns the analysis of the death rate among populations residing near a series of large industrial centres still in activity or disappeared, or industrial and/or hazardous waste storage areas, which have a profile of environmental contamination and health risks such that they were recognised as “sites of national interest for decontamination” (SIN) scheduled by the Structural Funds of the European Union”. It is a question of producing a functional mapping for projects of environmental remediation. The Health Ministry has identified 57 sites, made up of one or several municipalities: these are disused industrial sites, industrial sites in the process of regeneration, industrial sites in activity, areas which have known accidents in the past and areas which have been subjected to more or less uncontrolled dumping of waste, and which present a health risk for humans because of the contamination of the environmental media (soil, air, water). For 44 of these sites, included in the “National Remediation Project”, the size of the population concerned (which varied from 700 to 1 300 000 residents according to the census data from 2001) made possible a collection and an analysis of data on mortality, which was carried out for 63 causes of death in the period 1995-2002. The project is ongoing with further analyses to evaluate the incidence, hospitalisations, malformations, etc. It is interesting to note that “the presence of asbestos (or asbestiform fibres in Biancavilla, Sicily) was the exclusive motivation for the recognition of six sites of national interest for decontamination (Balangero, Emarese, Casale Monferrato, Broni, Bari-Fibronit and Biancavilla5 ). In all these sites with the exception of Biancavilla, an increase in mortality by pleural cancer was observed and in four sites the data was similar for both sexes. In the other six sites, sources of contamination other than asbestos were present. Mortality by malignant tumour is in excess for persons of both sexes in Pitelli, Massa Carrara, Priolo in the “coastal area close to Vesuvius”. In the reporting period, for all twelve sites contaminated by asbestos a total of 416 cases of malignant tumour of the pleura was observed in excess compared to the expected results” [Piratstu R, 2011]. The information on the SENTIERI project enables us to understand that the costs incurred by asbestos are not only human costs: the implementation of decontamination of the environment requires substantial economic investments. 5

Balangero, in the province of Turin, is the site of the Italian mine of chrysotile asbestos; Emarese, in the Aosta Valley, a municipality of about 200 inhabitants, is included not because of an excess of tumours in the population but because of the necessity to decontaminate waste from an asbestos mine and quarry in Cheissan, which closed for good at the end of the 60s; Casale Monferrato (Alessandria), Broni (Pavia) and Bari, are municipalities where asbestos-cement production plants were established.

2. Mesothelioma : epidemiology and compensation – E. Merler

4. The social welfare for diseases linked to asbestos The Italian system of compensation presents similarities with that of various European countries (United Kingdom, France or Germany for example), with regard to the system of protection for accidents at work and occupational diseases. This system is in fact based on similar principles, adopted at the end of the 19th century by various countries and which with the passage of time have evolved diﬀerently. The influence due to membership of the European Union has no particularly marked consequences: it is limited for our interest, to the definition of occupational diseases. In Italy, the employer is obliged to insure his employees and most of the employees are covered by a governmental institution: the INAIL. Other systems of insurance or social security cover employees from other sectors (railway workers, soldiers, sailors and others). An important change took place in 2000, when the concept of compensation was amended by replacing the compensation based on the sole consideration of the loss of capacity to work by a compensation which takes into account the personal damage to physical and mental integrity. To give an example, this means that for a diagnosis of cancer reducing life expectancy, the compensation should always be taken into consideration (and paid) at a rate of 60% or more, even if there is no incapacity to work at the time of diagnosis. In Italy, it is very belatedly – in the light of scientific knowledge and the situation in other European countries – that mesothelioma (whatever the type) and cancers of the lung have been included, only in 1994, in the exhaustive list (closed list) of diseases entitled to compensation for people who have been exposed to asbestos due to their work (pathologies for which it is not necessary to bring proof of causation). Since 1994 the number of mesothelioma cases recognised and which have received compensation, previously non-existent, has increased and today has reached about a third (or slightly more) of cases which occur every year, a number which still remains below that of other countries (notably in France). However, until very recently, the position of the main social security institution (INAIL) was to refuse compensation for cancers of the lung as an occupational disease, when the person exposed to asbestos was a smoker. This meant in fact refusing to recognise the pathology as an occupational disease. Today still, according to the most recent statistics from other European countries insurance systems, the number of cancers of the lung which have received compensation for employees exposed to asbestos remains low in Italy, if compared to the situation in France and Germany (Cf Figure 8).

§4. The social welfare for diseases linked to asbestos

Figure 8. In Italy the number of lung cancers which yielded compensation remains very low, even if lung cancer for workers exposed to asbestos has been included in the list of occupational diseases since the end of 1994. Recognition of occupational diseases, year 2003. Asbestosis / lung tumor / mesotelioma France ⇤ / Germany / Italy ⇤ In France a Fund for asbestos victims compensation has been set up in 2000.

It has to be remembered that the sheer number of cancers linked to asbestos as an occupational disease, their importance in many communities and the emergence of diseases not linked to the professional activity have led to many countries, including in Europe, making amendments to the legislation regarding social welfare. Some were partial amendments (as in England and Germany with a reduction in decision-making delays or an evolution of compensation rules for work-related illnesses) and some were more drastic, as happened in France with the creation of the Compensation Fund for Asbestos Victims (FIVA6 ) [Merler E, 2010]. The French decisions had an impact in Italy. 6

About the FIVA, see Marie-José Voisin’s article, this volume.

2. Mesothelioma : epidemiology and compensation – E. Merler

In Italy, in regard to the support for victims or families of persons struck by diseases linked to asbestos, with the law on financing in 2008 (during the Prodi government) it was decided to create a “Fund for asbestos victims” (“Fondo vittime dell’amianto”) to extend insurance protection (law 244, G.U. 300, 28 December 2007). However the implementation decisions (Decree of Ministry of Labour dated 12 January 2011), reached after an agonizingly long delay after the law was passed, brought an improvement to the levels of compensation awarded only for asbestos diseases compensated by the social security body with a rate of incapacity above 11% therefore covering only asbestosis and occupational cancer cases. To date, people struck with mesothelioma and their families are excluded from the system if the disease has a non-occupational origin (environmental or domestic). This represents about 10% of cases on a national level, but in some areas of Italy unfortunately, these cases represent a much higher proportion. So how does the system of insurance work in practice for work-related mesothelioma and cancer of the lung? In general there has been no adequate answer to this question in any country: as seen, the social security systems are incapable of providing useful data to understand who, among the people eligible, fell ill, who submitted an application and who got recognition. The information regarding the economic weight of compensation is opaque. Finally the cost of pathologies linked to asbestos – whether it is the cost of medical expenses or the social costs – is not matched. Thanks to the existence of the National Register of Mesothelioma and to the transfer of data to the regions by INAIL, which is a consequence of recent national agreements, it has become possible to make an evaluation by crosschecking individual data for mesothelioma cases (for the period 2000-2004) with those who submitted a compensation application. The method used is the best possible for obtaining answers, in the knowledge that the evaluation is based on cross-checking individual data and not on aggregate data– as is normally the case. The analyses carried out do not cover mesothelioma cases of occupational origin. Besides an evaluation based on national data [Marinaccio A, 2012], a more detailed study was made on the cases from the Veneto region, a region of 4.5 million inhabitants, highly industrialised and located in the North East of the country [Merler E, 2011]. The national data confirm an upward trend, over the years, of the number of applications and the number of occupational diseases recognition, which is assuredly a positive aspect.

ยง4. The social welfare for diseases linked to asbestos

Figure 9. Malignant mesotelioma cases with an occupational origin, National register. Number and proportion of subjects seeking for compensation by Region (2000-2004) Accessible on http://www.biomedcentral.com/1471-2458/12/314.

Source : Marinaccio et al, BMC Public Health 2012, 12:314.

2. Mesothelioma : epidemiology and compensation â€“ E. Merler

A marked gradient North-South can be observed: in the Centre and South of Italy, the persons (or their families) struck by a mesothelioma of occupational origin who make an application for occupational disease recognition are proportionally much lower than in the North of Italy. It remains to explain how this can happen, as the systematic cataloguing of cases and the contact with the person or family members to establish the professional career and identify the circumstances of exposure to asbestos, are the same: evidently, what has weight here is the lack of a relation between the data collection and the communication with the persons or their family on the one hand and inadequate care by the public institutions on the other hand. It is quite probable that the legal obligation to communicate to some institutional body all the work-related mesothelioma cases is widely circumvented (and to do so is not diďŹƒcult). What is positive is that in some regions, in particular in Liguria and in Friul-Venezia-Julia (located in the East and West ends of the North of Italy, where most of the cases are caused by occupational exposures in shipyards) the proportion of applications and recognition is high. As has already been seen in France [Golberg M, 1999], at the bottom of this is certainly a greater sensitivity to the heavy legacy left by asbestos among the various people involved. If an analysis is made in Veneto not only for the probability of submitting an application but also the probability of getting a recognition, variations can be observed which lead to a rethinking of the social security model: a high proportion of mesothelioma of occupational origin among women are declined; the percentage of positive response is lesser when the application is made by parents; the application is accepted for those who worked in some sectors where the existence of exposure to asbestos was well known previously but a high proportion of applications are declined for those who worked in the building trade, the occupational activity which generates the greatest number of cases, as was discussed earlier [Fig. 10, 11]. Finally, whereas the creation of FIVA in France determined a stricter control of delays, in Italy very substantial delays in decision-making (above two years) can be observed when the application is made by the surviving spouse, who are thus deprived of economic support in family situations made financially diďŹƒcult by the loss of a wage.

ยง4. The social welfare for diseases linked to asbestos

Figure 10.

Compensation claims for mesothelioma in the province of Veneto, Italy. Probability for not submitting a claim.

Figure 11. Probability for not obtaining a compensation Recognition of mesotelioma in the province of Veneto, Italy.

Source: Merler E et al. Epidemiol Prev 5-6 :243-250, 2011.

2. Mesothelioma : epidemiology and compensation – E. Merler

5. Early retirement for people exposed to asbestos The 1992 law banning asbestos had planned to favour early retirement for people who had been exposed to asbestos at work for a minimum of 10 years, increasing each year of exposure by 0.5 and therefore allowing the date of retirement to be brought forward. This regulation was designed for workers who, following the ban of all new asbestos production, would have lost their job and would have encountered difficulties in finding another job. In fact the law opened the right to early retirement, regardless of the loss of employment following a cessation of a productive activity or through still being exposed to asbestos today: it is the fact of having been exposed to asbestos in the past which opened the right to an early retirement package. It was decided first of all that, even if the law did not initially anticipate this, to define a minimum intensity of exposure: to benefit from this measure, you needed to be exposed in a continuous way to more that 100 fibres per litre during a period of at least 10 working years, the evaluation having to be certified by the institution responsible for social security (INAIL). The delays in the submission of applications were extended to enable the acceptance of people covered by INAIL. In conclusion, at the first deadline, in October 2003, there were more than 228 000 applications submitted; at the second deadline, on 15 June 2005, there was about 607 000. Only for the first series of applications are the result of the INAIL evaluation at an advanced stage (on 31 December 2004, 97 000 were allowed early retirement, 87 000 were declined and 45 000 were still being examined). This legislation has no equivalent in other countries that have decided to ban asbestos. Regarding other important questions raised by giving up asbestos, the early retirement of people who have been exposed to asbestos has encourage the focus on an aspect which is linked to compensation in a way - the high global cost of early retirement - obviously to the detriment of the extension of the Fund for Asbestos Victims, that is to the detriment of financial compensations given to those who suffered harm (and what harm, when you talk about cancer!) The decisions on the intensity of past exposures led INAIL to create files for each company where the employees submitting an application worked. In these files were gathered documents handed by employers as well as those which were in the INAIL archives or those which individual employees or their union representatives were able to produce to document exposure: the decisions of INAIL have generated lengthy disputes (civil law proceedings), because of contradictory decisions given by each judge in the different levels of jurisdiction and the legislative measures that have been implemented over time [Riverso R, 2009]. In Italy, in the past, measures taken against exposure to asbestos in the workplace were almost non-existent. By law, the preventative measures

§5. Early retirement for people exposed to asbestos

should have been relative to the “intensity of the exposure” (DPR 303/1956, art. 21) but it is not what happened. Besides, the Institution responsible for social security, INAIL, should have decided on the basis of its own assessments of the workplaces, who to insure, because of their exposure to asbestos. INAIL proceeded in a historically scandalous manner by excluding from premium payment from the 70s onwards, the employees of most of the asbestos-cement plants (the recorded values at Eternit were always “good”) or shipyard workers (the premium for asbestos-related risks was only requested for insulation workers, an activity given to tender to external companies). In conclusion, to decide what were the levels of exposure in the absence of measures is a mammoth undertaking. To decide only on the basis of documents coming from employers is unacceptable. For the first time, in a positive move, a documentation has been gathered with the names of the persons who declared themselves as having been exposed to asbestos at work. This allowed a better understanding of the national scope of the people exposed to asbestos and to generate among organisations of former employees exposed to asbestos, a claim for the monitoring of health. The persons who put in a claim for compensation from their welfare fund do not match exactly those who were exposed to asbestos and are still alive today. The number of people who were exposed to asbestos in their workplace and are still alive far exceed the number of those who submitted a claim. In Veneto, the discrepancy has been proved and the result of the followup for cases of mesothelioma and cancers of the lung has shown a fact which deserves a comment. Thus by simply reconstructing, from the work registers, the lists of employees of 18 businesses in Veneto which presented significant clusters of mesothelioma cases, the numbers of employees alive having been exposed to asbestos went from 7 400 (those who had made a request for early retirement) to 16 000, that is slightly more than double! By making an inventory of the incidents of cancer of the lung among these 16 000 employees during the last years (1992–2011), it can be observed that less than half of those for whom INAIL had – upon their request – certified an exposure of more than a 100 fibres per litre over a period of at least 10 years, had submitted a claim for recognition of their lung cancer as an occupational disease (Cf figures 12, 13).

2. Mesothelioma : epidemiology and compensation – E. Merler

Figure 12. Compensation claims for lung cancer among workers exposed to asbestos in Veneto. Lung tumors 2000–2007 (183 cases): compensation for workers who applied for early retirement. With application for early retirement 55 (30%) Accepted for social benefit 28 (50,1%) / Not accepted for social benefit 27 (49,9%) No declaration of occupational disease 17 (60,7%) / No declaration of occupational disease 21 (77,8%) After declaration, compensated 10 (90,9%) / After declaration, compensated 4 (66,7%)

In conclusion, the compensation system in Italy is weak and does not correspond, for cancers caused by asbestos, to the objectives for which it was created. In Veneto, only 35% of people suﬀering from mesothelioma eventually manage to benefit from support. Received 9 April 2013 Translated from Italian (and French version) by Fleur Pettie

§6.

Figure 13. Claims and compensation for lung cancer among workers exposed to asbestos in Veneto. Lung tumors 2000–2007 (183 cases); path to be accepted to social benefits and insurance compensation for those who did not apply for early retirement. No application for early retirement 128 (70%) At least 10 years of employment 59 (46,1%) / Less than 10 years of employment 69 (53,9%) No declaration of occupational disease 45 (76,3%) / No declaration of occupational disease 62 (89,9%) After declaration, compensated 8 (57,1%) / After declaration, compensated 5 (71,4%).

6. Bibliography 1. Barbieri PG, Mirabelli D, Somigliana A, Merler E. Asbestos fibre burden in the lungs of patients with mesotelioma who lived near asbestos-cement factories. Ann Occup Hyg 56: 660–70, 2012. 2. Barone-Adesi F, Ferrante D, Bertolotti M, Todesco A, Mirabelli D, Terracini B, Magnani C (2008) Long-term mortality from pleural and peritoneal cancer after exposure to asbestos: Possible role of asbestos clearance. Int J Cancer 123: 912–6, 2008 3. Berry G, Reid A, Aboagye-Sarfo P, de Klerk NH, Olsen NJ, Merler E, Franklin P, MuskAW. Malignant mesotheliomas in former miners and

2. Mesothelioma : epidemiology and compensation – E. Merler millers of crocidolite at Wittenoom (Western Australia) after more than 50 years follow-up. Br J Cancer 106: 1016–1020, 2012

4. Bilancia M, Cavone D, Pollice A, Musti M. Assessment of risk of mesothelioma: the case of an asbestos-cement production plant in the city of Bari. Epidemiol Prev 27: 277–284, 2003 5. Boﬀetta P, McLaughin JK, La Vecchia C. Reply: “Environment” in cancer causation and etiological fraction: limitations and ambiguities. Carcinogenesis 29: 1850, 2008 6. Bruno C, Comba P, Zona A, Nicita C, Tumino R. An estimate of pleural mesothelioma incidence in Biancavilla, Sicily, Italy, 1998–2004. Eur J Oncol 12: 183–187, 2007 7. Cavone D, Mirabelli D, Luberto F, Menegozzo M, Mensi C, Merler E, Miligi L, Silvestri S, Magnani C, Musti M, Marinaccio A. Il comparto della produzione di cemento-amianto. In: Terzo Rapporto. Registro Nazionale Mesoteliomi, ISPESL, Roma, pp 105–122, 2010 8. Eurogip.Rapportd’enquête.Les maladies professionnelles liéesàl’amiante en Europe: reconnaissance – chiﬀres – dispositifs spécifiques. Paris, 2006 9. Fazzo L, Minelli G, De Santis M, Bruno C, Zona A, Marinaccio A, Conti S, Pirastu R, Comba P. Mesothelioma mortality surveillance and asbestos exposure tracking in Italy. Ann Ist Super Sanità 48: 300–310, 2012 10. Goldberg M, Goldberg S, Luce D. Disparités régionales de la reconnaissence du mésothéliome de la plèvre comme maladie professionnelle en France. Rev Epidém et Santé Publ 47: 421–431, 1999 11. Marinaccio A, Scarselli A, Merler E, Iavicoli S. Mesothelioma incidence surveillance system and claims for workers’ compensation. Epidemiological evidence and prospects for an integrated framework. BMC Public Health 12: 314–320, 2012 12. Maule M, Magnani C, Dalmasso P, Mirabelli D, Merletti F, Biggeri A. Modeling mesothelioma risk associated with environmental asbestos exposure. Environ Health Perspectives 115: 1066–1071, 2007 13. Merler E, Bressan V, Somigliana A e il Gruppo regionale veneto sui mesoteliomi maligni. Mesoteliomi negli edili: frequenza, stima del rischio, carico polmonare di fibre di amianto, domande e riconoscimenti per malattia professionale nel Registro regionale veneto dei casi di mesotelioma. Med Lav 100: 120–132, 2009

§6.

14. Merler E, Tosato R (a cura di). Amianto e responsabilità sociale. Il “Fondo per il riconoscimento delle vittime dell’amianto”: opportunità, necessità, prospettive. Ediesse, Roma, 2010 15. Merler E, Bressan V, Bilato AM, Marinaccio A e il Gruppo regionale Veneto sui mesoteliomi maligni. I fattori che influenzano in Italia la domanda e il riconoscimento dei mesoteliomi causati dal lavoro: analisi basata su record-linkage tra dati del Registro regionale del Veneto e dati INAIL. Epidemiol Prev 5-6: 243–250, 2011 16. Mirabelli D, Merler E. Letter on: “Environment” in cancer causation and etiological fraction: limitations and ambiguities (by Boﬀetta et al. 2007, Carcinogenesis 28, 913–915). Carcinogenesis 29: 1083, 2008 17. Mirabelli D, Cavone D, Merler E, Gennaro V, Romanelli A, Mensi C, Chellini E, Nicita C, Marinaccio A, Magnani C, Musti M. Non-occupational exposure to asbestos and malignant mesothelioma in the Italian National Registry of Mesothelioma. Occup Environ Med 67: 792–794, 2010 18. Pasetto R, Bruni B, Bruno C, Cauzillo G, Cavone D, Convertini L, De Mei B, Marconi A, Montagano G, Musti M, Paoletti L, Comba P. Mesotelioma pleurico ed esposizione ambientale a fibre minerali: il caso di un’area rurale in Basilicata. Ann Ist Sup Sanità 40: 251–265, 2004 19. Pirastu R, Iavarone I, Pasetto R, Zona A, Comba P. SENTIERI. Studio epidemiologico nazionale dei territori e degli insediamenti esposti a rischio da inquinamento. Risultati. Epidemiol Prev suppl 4, 35: 1–204, 2011 20. Riverso R. La diﬃcile giustizia per i lavoratori esposti all’amianto. Questione Giustizia 1: 1–20, 2009 21. Silvestri S, D. Cavone D, Gennaro V, Menegozzo M, Mensi C, Merler E, Mirabelli D, Nicita C, Pannelli F. L’esposizione ad amianto nel settore edile: considerazioni generali e analisi dei dati ReNaM. In: Terzo Rapporto. Registro Nazionale Mesoteliomi, ISPESL, Roma, pp 123–138, 2010 22. Silvestri S. Managing asbestos in Italy: twenty years after the ban. New Solutions 22: 489–496, 2012

Chapter 3

Asbestos and health risks in Quebec by Fernand TURCOTTE This text «Asbestos and health risks» presents the situation in Quebec, as established by the National Institute of Public Health in Quebec. The researchers of the INSPQ1 deserve credit for having broken the law of silence which for so long prevented the doctors of my country from seeing the true face of the epidemic of diseases caused by exposure to asbestos which is ravaging our country. Like many of my colleagues, it is only on retiring that I became aware of the severity of the evil which befell us and which our asbestos production inflicted on the rest of humanity. I will confine myself to reporting the main features of the picture painted by the researchers from the INSPQ who had to employ a wealth of ingenuity in order to gather the data necessary to outline the problems generated, not only by our own exploitation of chrysotile, but also its use in our built environment. Thanks to the access to information, provided by internet, I would urge readers to see the original documents which can all be found from the home page of the INSPQ at the following address: http://www.inspq.qc.ca/dossiers/amiante/publications.asp?e=cp

1. The question of asbestos in Quebec For doctors in Quebec, asbestos remains a work-related health problem which only concerns the workers of asbestos mines and asbestos-processing plants. We are convinced that this problem has been finally resolved on work sites 1

INSPQ : Institut National de la Santé publique du Québec

– 63 –

3. Asbestos and health risks in Quebec – F. Turcotte

thanks to research carried out by researchers from the McGill University from 1964 onwards. So much so that we look on in astonishment at film reports showing all the precautions being taken when it comes to removing asbestos from public buildings, as was the case for the Parliament of Canada in Ottawa, to mention only one example. The University of Montreal campus is at present undergoing a renovation campaign of several buildings where asbestos also has to be removed. This does not prevent the building of the new teaching hospital of the McGill University, only a few kilometres away, from being fitted with pipes in asbestoscement, a carelessness which the asbestos industry will not hesitate to exploit as if it provided a valid proof of the irrationality of the movement promoting a ban on asbestos. When ignorance is sustained by conflicts of interest, it is easy to maintain a policy of denial, as has been done in my country for a century. Fortunately an event like today’s reminds us that there remains a lot to do to solve the problems linked to this material. You need to know that Canada no longer produces asbestos and is determined to give up as of now its opposition to the incorporation of chrysotile into the Rotterdam Convention. This shift in Canada’s policy is due to the new government led by Mme Pauline Marois.

2. The epidemiological situation of the diseases caused by asbestos Researchers from the INSPQ needed a wealth of ingenuity and persistence to gather the data necessary to establish the epidemiological picture from which I am presenting a few features in this article. The necessary data came in parts from the Register of Deaths, from the Fichier des tumeurs du Québec (FTQ) (the tumour registry), MED-ECHO (the administrative data gathered by the Hospital Insurance of Quebec) and MADO (Quebec’s reportable diseases database or Notifiable Disease register). We know that the individual remains the basic unit of analysis in epidemiology. In order to work through this constraint, it was necessary to collect information on real people about either their hospital attendance or the nature of the reported disease, in order to ensure that there was no duplication, overlap or loss of the people aﬀected, in a context where all these informations are regulated by complex rules, whose aim is to protect their confidential nature. It is unfortunate that it also serves in preventing a clear vision. I am sure that you will share my desire to express all the appreciation they deserve for their splendid work.

§2. The epidemiological situation of the diseases caused by asbestos

2.1.The incidence of asbestos-related diseases in the population of Quebec For the purpose of this presentation, I will confine myself to the following diseases: pleural cancer, mesothelioma of the pleura, mesothelioma of the peritonium and asbestosis. The duration of the observation period is diﬀerent for asbestosis hence the mention of the years defining the data-contributing period for this study. Chart 7 shows the number of cases by sex, the gender ratio as well as the average annual incidence rate by age and sex. The annual trend by sex and the direction of this trend are both statistically significant. Next we have the ratio of average annual growth. The last row of the table shows the incidence in three of the 17 socio-economic regions of Quebec, regions where the incidence rates are significantly higher than those of Quebec as a whole. You can guess that these regions are where asbestos is mined and processed (Chaudière-Appalaches, Estrie) and where asbestos processing plants and shipyards are situated (Montérégie and Lanaudière). The contrasting rates between the sexes are marked, which underlines the importance of exposure to asbestos in the workplace, in sustaining the epidemic. However, hundreds of women also fall victims to these diseases and this raises the possibility that secondary exposure at home or in the general environment might be added to exposure in the workplace. It should be noted that there is an overlap of data in the first two columns, with data coming from the Death Register where the cause of death is often only established from the clinical picture, the columns on mesothelioma only contain cases for which we have a histopathological diagnostic confirmation. With regard to asbestosis, nearly 170 new cases surface every year but it is probably an underestimate due to limitations linked to the records used to obtain the data presented in this chart. It is to be hoped that the fact that reporting asbestosis to the Notifiable Disease register has been made compulsory since November 2003, will improve the accuracy of this index. At the moment, the majority of reported cases comes from the experts’ panel on the Health and Safety at Work Committee (CSST), which is a guarantee of the quality of the confirmed diagnosis.

3. Asbestos and health risks in Quebec – F. Turcotte Chart 7

Rates of cancer of the pleura, mesothelioma of the pleura and of the peritoneum (1982-2002), rates of hospitalizations with first mention of asbestosis in Quebec (1992-2004) Cancer of the pleura 1982-2002 Number

M/F

1401/431

Mesothelioma Mesothelioma Asbestosis of the pleura of the peri- 1982-2002 1982-2002 toneum 1982-2002 1210/320 98/72 1993/79

3,25/1 M : 2,31 F : 0,55 M : increase

3,78/1 M : 1.98 F : 0,41 M : increase

M : +2,0%

M : +3,6%

ChaudièreAppalaches: M : 3,85 F : 0,97 Montérégie: M : 2,86 Lanaudière: M : 3,32

ChaudièreAppalaches: M : 3,38 F : 0,83 Montérégie: M : 2,53 Lanaudière: M : 2,77

(a)

Ratio M/F Average annual rate(b) Annual trend s.s.(c) by sex Average annual growth rate s.s.(c) by sex Regions with statistically significant excess at threshold 1% and rate/100 000 person-years

1,36/1 M : 0,15 F : 0,09 No trend

25,2/1 M : 4,80 F : 0,14 No trend

No significant excess

ChaudièreAppalaches: M : 16,48 F : 0,38 Estrie: M : 11,10

(a)

M= male; F=female;

(b)

: Adjusted average annual rate by age/100 000 person-years;

(c)

s.s. =statistically significant at a 5% threshold.

Lanaudière

M : 6,22

Source: Lebel et Gingras, 2007. So Quebec is experiencing an epidemic of mesothelioma of the pleura. Its rate of growth has been 3.6% per year for men in the two decades for which we have gathered information. The data on this chart depicts the impact of exposure to asbestos on the population as a whole. The indemnification programme for workers made ill through exposure to asbestos gives more specific information on the distribution of the diseases in various sectors of the economy.

§2. The epidemiological situation of the diseases caused by asbestos

2.2.Asbestos-related diseases among the Quebec workers. We start by commenting the two charts below. Chart 13. Asbestos-related diseases according to sector/activity. (special committee on occupational lung diseases 1988-2003) Sector/activity Asbestosis

Mines Processing Construction Maintenance and repair Other Mixed Unknown TOTAL

n 198 81 189 218

% 26,1 10,7 24,9 28,7

48 6,3 26 3,4 12 – 772 100,0

Mesothelioma Cancer of the Lung n % 59 16,0 37 10,1 71 19, 3 148 40,2

n % 203 56,5 43 12,0 38 10,6 52 14,5

Total number of (a) workers n % 387 29,1 150 11,3 279 21,0 377 28,4

39 10,6 14 3,8 8 – 376 100,0

12 3,3 11 3,1 5 – 364 100,0

91 6,9 4,4 3,3 20 – 1343 100,0

1348 workers had 1512 diseases Source: De Guire et Provencher, 2009 (a)

Chart 14. Deaths accepted by the CSST (commission on occupational health and safety) by year and cause of death. Cause of death

Accidents at work Occupational diseases - Asbestos diseases: Mesothelioma Asbestosis Lung cancer Others - Other diseases Total number of deaths

Cause 2005 n % 105 47 118 53

of death 2006 n % 113 55 93 45

105 89 50 – 33 – 22 – 0 – 13 11 223 100

81 87 47 – 19 – 14 – 1 – 12 13 206 100

Year of acceptance of 2007 2008 n % n % 82 40 92 47 125 60 103 53 96 77 61 – 13 – 22 – 0 – 29 23 207 100

85 83 50 – 17 – 18 – 0 – 18 17 195 100

death 2005-08 n % 392 47 439 53 367 84 208 – 82 – 76 – 1 – 72 16 831 100

The text in italics shows the cause of death by occupational diseases. The percentage in italics are calculated on the total number of occupational diseases.

Source: L’Epicier, 2010a.

3. Asbestos and health risks in Quebec – F. Turcotte

As the data in chart 13 shows, asbestos-related diseases are not confined to those working in the mines and in the conditioning process. Two-thirds of workers getting compensation for these diseases come from sectors other than the mines. Chart 14 shows the size of indemnifications in relation to asbestos-related diseases despite the fact that a portion of the victims do not receive the indemnification they deserve because, not knowing that they were exposed to asbestos during their working life, they do not put in a claim. Chart 14 shows the significance of compensation for deaths from diseases caused by asbestos in our economy. More than half of compensation paid for job-related deaths are linked to asbestos.

3. Conclusion It is hoped that by getting rid of its conflicts of interest and giving up asbestos production, our country will face the tragedy that asbestos wreaks on its people in a decisive manner. When the history of the shameful denial professed by Canada is written, I am sure that the contribution made by the INSPQ researchers to raise awareness of this tragedy, will be held as decisive. Their contribution has already started to restore honour to our country. Received 19 February 2013 Translated from French by Fleur Pettie References Charts 7, 13 et 14 are drawn from : “Amiante : connaissances acquises sur l’exposition et les maladies des travailleurs et de la population générale du Québec de 2003 à 2009". Institut National de Santé Publique du Québec, 2011. ISBN 978-2-550-60931-5 Available online (via http) www.santecom.qc.ca/bibliothequevirtuelle/hyperion/9782550609315.pdf

Chapter 4

Asbestos in Brazil, a public health issue by Hermano CASTRO During the last 40 years the world has witnessed a raise of cases of mortality by mesothelioma in every continent. Nevertheless these numbers do not represent the reality in countries where there exists no adequate register for this pathology. This is the case of Brazil, where one witnesses an under-reporting of asbestos-related diseases, specially mesothelioma. Among the causes of this social invisibility of asbestos-related diseases, specially mesothelioma, there are : the long period of latency, the absence of characterisation of exposures and exposed persons and, mainly, the difficulty for workers to have access to specialised centres, for a differential diagnostic. The absence of qualified informations about our reality turns difficult the measurement of damages caused by asbestos and leaves out a large number of workers in need of an extended medical follow-up to be able to have access to benefits and rights due to damages caused by asbestos. Even so, the data we will be presenting display a strong tendency of increase of mortality by mesothelioma, in the previous years, as we will discuss. From the occupational point of view, there is no systematic and adequate communication about workers exposed to asbestos and a failure of medical follow-up for these workers by our Sistema Único de Saúde (SUS, Unique Health System) in Brazil. The companies, even when they defend the «controlled use of asbestos», do not respect the federal law No. 9055/95, which protects them. To make things worse, 17 of them have been exempted by a liminar (a pre-judgement) from complying with the decree No. 1851/2006 of the health ministry, which approved procedures and criteria for the communication of lists of workers exposed or having been exposed to asbestos, during activities of mining, – 69 –

4. Asbestos in Brazil, a public health issue – H. Castro

processing, using, manipulating, transporting products and equipments containing asbestos. The decree No. 1851/2006 rules the federal law on what concerns this type of information. The liminar conceded by the Supreme Court of Justice (STJ) therefore contributes to the concealment of cases of diseases and the extension of this serious epidemiological silence. The damages, in the work place and the environment, caused by asbestos could soon become one of the most serious problems of public health in Brazil. There is a true sanitary urgency! The FIOCRUZ1 and its researchers, in spite of the limitation of available funds, do everything they can to realize studies that unveil the problems of diseases linked to asbestos exposures in Brazil.

1. Ignorance of risks linked to asbestos exposure The hazards of asbestos are still unknown to the majority of the country and population, even when the carcinogenic fibre is widely used. The informations coming with the products are not clear in what they say about the risks during manipulation and omit important issues like the risk of developing cancer. They only recommend that, when drilling or cutting «not to breath the dust generated, because this could severely damage your health», thus transferring the onus on the users; they should not breathe, like if it were possible. The Brazilian government contributes to this misinformation policy, as it can be seen in the 2009 report of the ministry of mines and energy who only quotes «It is largely recognized that inhalation of long fibres (one considers long those greater than 5µm), insoluble and at high concentration, over a long period, may potentialize occurrence of pulmonary cancer » and underlines only a «suspicion of association between asbestos exposure and lung cancer », without any reference to mesothelioma (the cancer specific to asbestos). The first source of exposure in the asbestos productive chain is mining. Even if the company SAMA, from the Eternit holding, is oﬃcially the only active mining industry in Brazil, there are various unused deposits and inactive asbestos mines, for the most part amphibole (anthophyllite), which ceased to function at the end of the 60s, when the huge mine of Cana Brava, state of Goiás, was started. The best known is the mine of São Felix do Amianto, located near Bom Jesus da Serra, south of the state of Bahia, which was operated from 1939 till 1967. The second main source of exposure to asbestos is the processing industry. In this category, we find the production of asbestos-cement, which uses 1 FIOCRUZ (Fundação Oswaldo Cruz) : hospital foundation for medical research, whose seat is located in Rio de Janeiro (editor’s note).

§1. Ignorance of risks linked to asbestos exposure

around 99,4% of the national production of the carcinogenic mineral. The industries of friction materials, chlorine, textiles for protection and thermal insulation, responsible today for 0,6% of the national consumption, have practically eliminated use of asbestos in their productions. The third source of exposure to asbestos is environmental. It is a diﬀuse exposure, diﬃcult to measure and carrying big risk, mainly of developing mesothelioma. So the presence of asbestos in asbestos-cement roofs, pipes and water tanks, acoustic and thermal insulation, panels, tiles, slabs, decorative vases, electricals, friction materials, textiles and other products, constitute an environmental liability, capable of producing diseases in the population, which has not yet been evaluated and even less managed in terms of health, concerning the risk of developing a disease linked to exposure to the carcinogenic mineral. 1.1.Mine wastes The SAMA mine of São Felix do Amianto, near Bom Jesus da Serra, in the state of Bahia, has been abandoned since 1967. Nevertheless the local population, which did not follow the transfer to the state of Goiás, continues to freely access the pits of the old mine and to be exposed to the scattered wastes nearby.

Abandoned asbestos mine, Bom Jesus da Serra/Bahia.

4. Asbestos in Brazil, a public health issue â€“ H. Castro

Neither Saint-Gobain, the first owner of the mine, nor Eternit the current head of environmental liabilities, bothered to isolate the mine area to avoid people entering this degraded site. Until now, the necessary environmental rehabilitation has not been undertaken and is delayed ad eternum with the complacency of public authorities. The wastes from the old mine have been used undiscriminately for the construction of houses in the city of Bom Jesus da Serra et the villages nearby, or for paving local roads and even for making graves in local cemeteries.

Crushed stones left over by the SAMA mine, Bom Jesus da Serra (state of Bahia), are used as building material.

The local population is totally ignorant of risks, because of a lack of information, which should be provided by the mining company and the government institutions, specially those in charge of health issues. A study on the perception of environmental health risks, in this location, confirmed the total ignorance of the population about the hazards of asbestos for their health. A questionnaire was presented to a sample of 83 families leaving near the old mine. The results show a central preoccupation for the contamination by dust but a total ignorance on the risks of falling ill or dying from the exposure. Few of the people interviewed made any connection between lung diseases and the presence of the asbestos mine in the neighbourhood.

Â§1. Ignorance of risks linked to asbestos exposure

House with foundations built with asbestos stones, city of Bom Jesus da Serra/ Bahia.

Roads paved with asbestos wastes, Bom Jesus da Serra/ Bahia.

1.2.The asbestos-cement industry Asbestos tiles and water tanks in poor state of conservation easily liberate fibres in the environment. This is a risk always present for the population which uses asbestos-containing materials in roofs, water tanks and other fibro-cement materials, which receive constant aggressions from weather or by the eďŹ€ect of aging of the the product.

4. Asbestos in Brazil, a public health issue – H. Castro

An inspection of the land on the side of an asbestos-cement plant, in Rio de Janeiro, displayed the unpracticability of the so-called «controlled use» and the lack of responsibility of the company, which buried for years its residues in an adjacent field, today occupied by natural vegetation.

Field on the side of a factory producing asbestos-cement roofs, where wastes have been buried, city of Rio de Janeiro.

Surrounding land near the plant with asbestos wastes buried.

§1. Ignorance of risks linked to asbestos exposure

The photo below shows an inspection team collecting samples in the field contaminated by wastes from the neighbour asbestos factory, which were buried. The asbestos, mixed with soil, was covered by native vegetation which took over the abandoned field.

Health professionals from the state of Rio de Janeiro, the foundation FIOCRUZ and members of ABREA2 , picking up asbestos-containing material.

The political option of «safe use» adopted in Brazil, through the federal law 9055/95 of «controlled use of asbestos», contrary to a responsible decision of banning, shows every time its inapplicability, putting at risks the whole community, mainly the most vulnerable, as can be seen in the photos below, who lives of the trade of damaged roofs, without any «control»; therefore with a high risk for their health. The two photos next page display clearly the exposures of these communities of low income to broken tiles, chunks and residues, without any protective equipment to reduce the possibility of inhaling fibres.

ABREA: Associação Brasileira dos Expostos ao Amianto – Brazilian Association of Persons Exposed to Asbestos, see the article by Fernanda Giannasi, this volume (editor’s note).

4. Asbestos in Brazil, a public health issue â€“ H. Castro

Water tanks and asbestos roofs sold in promotion.

Premises for sale of roofs for people from poor districts. Sellers and inhabitants are exposed to asbestos without any protection.

§1. Ignorance of risks linked to asbestos exposure

1.3.Products containing asbestos The next two photos show a double standard in relation to information provided to the consumer. The first photo displays the wrapping of a plastic adhesive mortar for small repairs which claims to be without asbestos, as a marketing argument. Unfortunately this is not a frequent practice in Brazil, and similar glue or mortar are imported from China, containing asbestos, and are sold at a small price than those without asbestos.

Durepoxi – adhesive mortar for small domestic repairs, which is sanded once dried («não contém amianto» = does not contain asbestos).

Frozen chicken for export. The seal on the wrapping certifies «livre de asbesto » (without asbestos).

A similar example of double standard can be found in poultry products for export, as the one in this photo. The wrapping of these pieces of chicken carry a seal «livre de asbesto» which guarantees that the chickens have been bred in an environment without asbestos. The owners of these enterprises were compelled to withdraw asbestos roofs to comply with the demand of their customers from countries which prohibit asbestos. This double morale is a frequent behaviour in the country, not to have the same standard for the

4. Asbestos in Brazil, a public health issue – H. Castro

national consumer, which continues to freely consume asbestos and asbestoscontaining products, without any control or restriction, as chickens bred in barns covered with traditional asbestos-cement roofs.

2. Epidemiology of asbestos diseases in Brazil As we mentioned earlier, there are no systematic registers for mesothelioma in Brazil, which raises diﬃculties for consistent epidemiological studies to evaluate the gravity and project the future of diseases and mortality related to asbestos. Until today, this invisibility of cases persists, given the lack of diagnostics and protocols, mainly for mesothelioma. Even if the Brazilian legislation indicates a follow-up of workers, during their work period and after their exit from the production chain, for at least 30 years, there are gaps in this monitoring. It is necessary and urgent to invest in the formation of a basic health network in our Sistema Único de Saúde (SUS) to make visible the cases of asbestos-related diseases in Brazil. Even so, the few studies show in Brazil a tendency of increase of the number of cases. In 1975, professor Diogo Pupo Nogueira published one of the first report on asbestosis of a worker in the asbestos-cement industry. In this article, attention was drawn to the possibility of other cases being invisible in Brazil, because of the increase of asbestos consumption, initiated a decade earlier. Report of 3 cases of mesothelioma were published by De Capitani, in 1997, where 2 had been exposed occupationally and one domestically, being the last son of an ex-employee exposed to asbestos in the steel industry. The information existing in the data basis of the Brazilian health ministry, concerning the number of diagnosed cases of asbestosis, are 25 between 1979 and 1998; for mesothelioma, 306 cases were registered between 1996 and 2000. Certainly, these numbers do not represent the true Brazilian situation, due to the under-notification and the lack of diagnostic, already mentioned. Works of Algranti et al. in 2001, diagnosed 74 cases of asbestosis and 246 pleural thickening, via high resolution computed tomography (HRCT) for the chest, in a population of 828 workers exposed to asbestos in the old Eternit plant in Osasco. In Rio de Janeiro, in the textile industry, using asbestos in its production, Castro et al. in 2003, followed during 8 years 121 exemployees of TEADIT (ex-Asberit, a company which was part of the JohnsManville conglomerate), where they diagnosed 1 case of laryngeal cancer, 1 case of mesothelioma and 26,7% of this group suﬀered from asbestosis. Among the sick, there was a high percentage of women and young persons. In 2007 (see figure below), the team of the state secretariat for health in Rio Grande do Sul, published a study of 23 cases of mesothelioma, among

§2. Epidemiology of asbestos diseases in Brazil

which 22% had a clear history of occupational exposure and 61% a clear environmental exposure (residency with asbestos-cement roofs or other products), pointing out the urgency of occupational and environmental investigations in Brazil.

Cases of death by mesothelioma, between 1999 and 2003, according to the type of exposure (occupational/environmental/not localized).

Still in relation with mesothelioma, the study by Pedra et al. in 2008, showed 50 deaths by mesothelioma in 1980, rising to 179 in 2003, revealing a total of 2414 deaths between 1983 and 2003. In Brazil the epidemiological studies are based on oﬃcial registers of the health ministry, on ambulatory treatments, hospitalizations and mortality. The most recent data on deaths by mesothelioma, in Brazil between 1980 and 2010 reach a total of 3718, among them 52,74% men and 47,18% women. All these studies show an increase of mortality by mesothelioma in Brazil, during the observed period, like the increase observed in the majority of industrialized countries, where the asbestos diseases are considered a genuine epidemic – «the sanitary catastroph of XXth century». The graph below illustrate the increasing trend line of mortality in Brazil between 1980 and 2010. It is not exagerated to insist in saying that this is only the tip of the iceberg, because of the already mentioned sub-registration

4. Asbestos in Brazil, a public health issue – H. Castro

of occupational diseases in Brazil in general and in particular related to asbestos.

Frequency and rate of mortality by mesothelioma in Brazil between 1980 and 2010. The trend line is increasing throughout this period.

In 2010, a team from the health ministry realized a study on public costs in Brazil related to asbestos diseases, in the period between 2000 and 2010, based on the data of hospitalizations in the Sistema Único de Saúde (SUS), which found a cost over 100 millions euros. Without any doubt, this is a huge waste of public money to treat diseases that could have been prevented; money that could be used to improve conditions of medical care and public hospitals in our country, and actions for prevention. Finally in 2011, I had to answer a legal action, initiated by the Instituto Brasileiro do Crisotila (IBC, Brazilian Chrysotile Institute), because I made public epidemiological informations from the data basis of the ministry of health, which are fundamental for the development of health policies, mainly in the field of health surveillance of the worker. Dedication. I dedicate this text to workers exposed to asbestos, who fall ill and die without guaranteed rights and, specially, in tribute to our first president of ABREA-RJ, textile industry worker, Rosa Amélia Alves de Araújo, who died of asbestosis in 2003. Text received 17 May 2014 Translated from Portuguese by Marc Hindry

§2. Epidemiology of asbestos diseases in Brazil

Bibliography 1. Data on costs, from the Brazilian ministry of health: http://tabnet.datasus.gov.br/tabdata/livroidb/2ed/CapituloE.pdf 2. National Department of Mine Production (Brazil), 2013, Crisotila-Amianto: https://sistemas.dnpm.gov.br/publicacao/mostra_imagem.asp? IDBancoArquivoArquivo=7383 3. National Department of Mine Production, mineral economy (Brazil) – 2009 – Crisotila-Amianto: http://www.dnpm.gov.br/conteudo.asp?IDSecao=68&IDPagina=1461 https://sistemas.dnpm.gov.br/publicacao/mostra_imagem.asp? IDBancoArquivoArquivo=4010 4. Algranti, E.; Mendonça, E.; De Capitani, E.M.; Freitas, J.B.; Silva, H.C.; Bussacos, M.A. Non-malignant asbestos-related diseases in Brazilian Asbestos-cement workers. American Journal of Industrial Medicine, v. 40, n. 3, p. 240–54, 2001. 5. Algranti, E. Epidemiologia das doenças ocupacionais respiratórias no Brasil . In: Da Silva LCC. Epidemiologia das doenças respiratórias, volume 1. Rio de Janeiro: Ed. Revinter.Pags 119–43, 2001. 6. Boletim Epidemiológico, Août 2012 – Edição no . 5, ano II: Morbi Mortalidade de Agravos à Saúde Relacionados ao Amianto no Brasil, 2000 a 2011 . http://www.renastonline.org/sites/default/files/arquivos/ recursos/bol7_amiantoF9.pdf 7. De Capitani E. M.; Metze, K.; Frazato Jr., C.; Altemani, A. M. A.; Zambom, L.; Toro, I. F. C. & Bagatin, E., 1997. Mesotelioma maligno de pleura com associação etiológica a asbesto: A propósito de três casos clínicos. Revista da Associação Médica Brasileira, 43:265–272. 8. Castro, H. A.; Mendonça, I. C. T. Perfil respiratório de 121 trabalhadores de uma indústria têxtil com exposição ao amianto no estado do Rio de Janeiro. Revista Brasileira de Medicina do Trabalho, v. 1, n. 2, p. 119–123, 2003. 9. Castro, H.A., Gomes, V.R.B. Doenças do Aparelho Respiratório Relacionadas à Exposição ao Asbesto: Rev. Pulmão, RJ, vol 6, no 3, 162–170, 1997. 10. Castro, H. A.; Giannasi, F.; Novello, C. A luta pelo banimento do amianto nas Américas: uma questão de saúde pública. Ciência & Saúde Coletiva, Rio de Janeiro, v. 8, n. 4, p. 903–912, 2003.

4. Asbestos in Brazil, a public health issue – H. Castro

11. Moniz M., Peres F., Castro H. A. Amianto, perigo e invisibilidade : percepção de riscos ambientais e à saúde de moradores do município de Bom Jesus da Serra/Bahia. Ciência e Saúde Coletiva, 17(2) 327–336, 2012. 12. Nogueira, D. P.; Certain, D. A.; Uesugui, S. J.; Koga, R. K. & Ribeiro, H. P., 1975. Asbestose no Brasil: Um risco ignorado. Revista de Saúde Pública, 9:427–432. 13. Pedra F., Tambellini AT., Pereira B., da Costa AC., de Castro HA. Mesothelioma mortality in Brazil, 1980–2003 . Int. J. Occup. Environ. Health, 2008, Jul-Sep. 14(3), 170–175.

Chapter 5

Treatment of malignant pleural mesothelioma – limitations and progresses by Arnaud SCHERPEREEL

Malignant pleural mesothelioma (MPM) is a rare cancer but with an increasing incidence (900 new patients per year in France), secondary to a previous exposure to asbestos up to 30 or 40 years before diagnosis. This aggressive cancer is diﬃcult to manage and often resistant to usual chemotherapy treatment. These elements together with an often complex and late diagnosis lead to a generally poor prognosis for patients diagnosed with MPM (median survival time less than 12 months). However real therapeutic progress has been made these last years through: 1. a better knowledge of the mechanisms of cancer (pathogenesis) 2. better care of the patients from the diagnosis to the follow-up 3. the creation of a network of “rare cancers” dedicated centres for treatment of MPM, the “MESOCLIN” network; coordinated and multidisciplinary, under the leadership of the National Institute against Cancer (INCa) 4. the development of new treatments or therapeutic strategies These various advances or perspectives are discussed below.

– 83 –

5. Treatment of malignant pleural mesothelioma – A. Scherpereel

1. Knowledge and diagnostic 1.1. Knowledge of the mechanisms of cancer (pathogenesis) for MPM a) Existing knowledge The development of MPM by proliferation of tumour cells is based on several mechanisms important to know for understanding the lines of existing therapeutic research [1. Astoul et al.] : – Genetic changes in pleural cells by an inflammatory invasion (secondary to exposure to asbestos . . . ) responsible for an over-expression of certain genes responsible for the development of cancer and conversely an under-expression of other genes preventing the appearance of a cancer (p16, p14, NF2 . . . ) and/or physiologically inducing apoptosis (=programmed cell death) of these cells. – An over-expression of certain growth factors such as the transforming growth factor beta (TGF-b), the vascular endothelial growth factor (VEGF), the hepatocyte growth factor (HGF-SF) or the platelet derived growth factor (PDGF), chemical messengers between cells stimulating tumour growth and tumoural angiogenesis (creation of new cancer-feeding blood vessels) – An important inflammatory reaction but defects of the immune response of the patient against cancer b) An earlier diagnosis for a better treatment? • To date, based on current information, the value of a general screening of MPM has not been proven, whether by chest CT scan or by blood biomarkers (mesothelin . . . ) because their performance is considered unsatisfactory, even without taking into account the low incidence of MPM in the general population and the absence of curative treatment for this cancer. However, with the present advances in treatment and by better defining the “at risk" population to target for screening, it is essential to carry on research with this goal [2. Scherpereel et al.]. • Thus the demonstration of genetic pre-disposition among some of the patients with an MPM, exposed to asbestos, oﬀers fascinating prospects. Professor Testa and his team [3. Testa et al.] highlighted germ-line mutations as well as somatic ones (bi-allelic inactivation) of the BAP1 gene (BRCA1-associated protein 1) among patients in 2 families showing a high incidence of MPM. Some BAP1 mutation carriers developed other cancers such as uveal melanoma or kidney cancer. Germ-line BAP1 mutations were also found in 2 of 26 sporadic mesotheliomas, patients who were previously diagnosed with uveal melanoma. Truncating mutations and aberrant BAP1 expression were common in sporadic MPM without germ-line mutations. We can therefore imagine a possible identification of individuals at high risk of

§1. Knowledge and diagnostic

MPM (BAP1 mutation carriers exposed to asbestos) who should be closely monitored. • Also worth following, the current evaluation of potential new and noninvasive test for MPM such as the blood marker, fibulin-3, and above all the search for components (volatile oxydative compounds, VOC) suggestive of cancer in the exhaled air of individuals at risk, detected either by trained dogs, or especially by electric noses, very sensitive machines, with encouraging results but still complex to interpret [4. Chapman et al.]. 1.2.Better staged care from diagnosis to treatment Thoracic doctors and surgeons caring for patients suﬀering from MPM, have at their disposal to help them, the recommendations proposed by specialists from the Société de Pneumologie de Langue Française (SPLF) in 2005 for the treatment of MPM [5. Rev. Mal. Respir. 2006]. These recommendations for MPM management have since been updated in 2009 by the European experts from the European Respiratory Society (ERS) and European Society of Thoracic Surgery (ESTS) [2. Scherpereel et al.]. These recommendations are a major tool for the new national network of MPM specialist centres, “MESOCLIN”. 1.3.An improved coordination of MPM care by Rare Cancers Specialised Centres: the national network “MESOCLIN” Supported by a 2011 appeal for projects made by the National Institute Against Cancer (INCa) for rare cancers, the national “MESOCLIN” network of regional specialised centres for MPM, coordinated by the CHRU de Lille (Pr A. Scherpereel) is gradually being put into place and its mandate is to: – Organise a network of regional specialised centres for the treatment of MPM – Allow access to advice from national/regional specialists, and access to innovative diagnosis and therapy through pluridisciplinary consultation meetings at regional and national levels. – Facilitate the setting up of clinical trials and patient inclusion. – Improve specific knowledge about the diagnosis, prognosis and treatment of MPM (clinical data collection); links with MESOPATH (French mesothelioma panel of pathologists - MesoBank/Banque Clinico-biologique project) – Strengthen the diﬀusion of good practice in MPM care (information and education) for use by professionals, patients and the general public (family members, associations . . . ) ; http://mesoclin.chru-lille.fr – Contribute to the work of the Institut de veille sanitaire (Sanitary Surveillance Institute) as MPM is a notifiable disease and improve knowledge of the environmental risks.

5. Treatment of malignant pleural mesothelioma – A. Scherpereel

2. New treatments or therapeutic strategies for MPM. The treatment of MPM present significant limitations: • MPM displays great resistance to standard chemotherapy. The cisplatin/ pemetrexed combination is recommended in first-line chemotherapy of MPM but the response rate of patients to this treatment remains limited (about 30%). Furthermore, after failure of first-line chemotherapy, no randomised study suggests any benefit in survival or quality of life of secondline chemotherapy. It is therefore vital to propose the inclusion of patients in good general health in clinical trials. • The targeted therapies in MPM are not validated but several molecules have been or are still under evaluation. The results of some trials have led to: – failures : for some multi-targets drugs such as in second-line, sunitinib (abstract IMIG 2010, Nowak et al), imatininib, thalidomide (abstract IMIG 2012, Baas et al), or vorinostat in second-line or beyond, even if it could be considered as a strategic error the mono-therapy use of this histone deacetylase inhibitor (HDACi) during the large phase III trials (abstract IMIG 2012, Krug et al) . . . – positive and encouraging trials, to be verified: the use of another HDACi (valproic acid) combined with a doxorubicin chemotherapy for MPM in second-line treatment or beyond showed a rate of response of 16% inducing prolonged survival in responding patients [6. Scherpereel et al.]. The histone deacetylase inhibitor (HDACi) thus represent a promising class of anti-tumour drugs with diﬀerent mechanisms to explain their anti-tumour eﬀect: an induction of apoptosis (programmed cell death) of cancer cells by modulation of gene transcription, inhibition of angiogenesis, of the mobility and invasive character of tumour cells. Other promising trials are taking place across the world: intra-pleural gene therapy with adenoviral vector of the interferon gene (IFN)-↵2b, measles vaccines or listeria-based vaccines, anti-tumour dendritic cells vaccines [1. Astoul et al.]. . . Special mention must be made of the trial “MAPS” (Cis-Pem ± bevacizumab), the only ongoing large randomised Phase III trial (445 patients) in first-line, organised in France by the IFCT-GFPC academic group of thoracic oncology. The results from Phase II were promising with a 57.4% disease control rate after 6 months and a progression-free survival (PFS) of patients in the 2 arms of treatment equal to 9.2 months, associated with a good tolerance of treatment (Zalcman abstracts et al, ASCO 2010; Scherpereel et al, IMIG 2012). The end of recruitment for the trial is scheduled for December 2013 and the first results for 2015.

§2. New treatments or therapeutic strategies for MPM.

Finally, two very interesting large international trials will very shortly begin in France under the coordination of the CHRU de Lille, one (the Verastem R trial) testing, following a standard first-line chemotherapy for MPM (6 pemetrexed-cisplatin cycles), a targeted maintenance therapy with a focal adhesion kinases (FAK) inhibitor. The product of the neurofibromatosis gene 2 (NF2), known as merlin, is a frequently inactivated tumour suppressor in malignant mesothelioma [7. Poulikakos et al.]. The experimental anomaly correction, by an FAK inhibitor, produced an anti-tumour effect on MPM and provides the rationale for this study. The other clinical trial (MedImmune R ), will assess a treatment stimulating the immune system of the patient against cancer by repeated injections of anti-CTLA-4 antibodies (versus double-blind placebo study), efficient in malignant melanoma [8. Lens et al.], in second or third-line of treatment for MPM following a failure of standard first-line chemotherapy of MPM with cisplatin-pemetrexed. • The multi-modal treatment of MPM, combined with surgery, chemotherapy (CT) +/- radiotherapy (RT), has not been validated but is still under evaluation. Within this treatment, the current evolution of the surgery for MPM is characterised by: – a clear loss of interest for extra-pleural pneumonectomy (EPP), a very major surgery because it involves a resection of the lung as well as the pleura, the pericardium (membrane enclosing the heart) and the diaphragm, responsible for a perioperative mortality in 5% of cases and morbidity (complications) in more than 50% of cases. A clinical trial in Phase II (EORTC 08031) testing the combination CT+EPP+RT combination did show a median overall survival of patients of 18.4 months and a progression-free survival of 13.9 months but the feasibility of the complete treatment without serious complications was obtained in only 42% of the patients [9. Van Schil et al.]. Furthermore, similar results in survival were reached with chemotherapy alone for the same (early) stages of MPM [10. Hillerdal et al.] ! Lastly, the failure of the British trial “Mesothelioma And Radical Surgery” (MARS) having investigated CT alone versus CT+EPP combination or Pleurectomy/Decortication (P/D) pleads a little more against major surgery such as EPP in terms of feasibility and efficiency (survival) even if the results were highly questionable from a statistical analysis point of view [11. Treasure et al.]. – As a result, there is a return towards extended pleurectomy/decortication (eP/D) because if this radical surgery is considered non carcinogenic (it does not allow the removal of the whole microscopic or even macroscopic tumour), this complete macroscopic resection of MPM spares the underlying lung, presents a morbi-mortality well below that of EPP and also changes the quality of life of the patient less. It is offered combined with chemotherapy (± radiotherapy) and especially an intra-pleural treatment varying according to the trials: intra-pleural hyperthermic CT,

5. Treatment of malignant pleural mesothelioma â€“ A. Scherpereel targeted therapies, immunostimulant therapy or intra-operative photodynamic therapy (PDT). Intra-operative photo-dynamic therapy (PDT) for MPM

Photodynamic Therapy (PDT) intra-operative for MPM patients MPM displays a great resistance to chemotherapy and few patients are potential candidates for radical surgery (extra pleuro-pneumonectomy, EPP). The extended pleurectomy/decortication (eP/D) [2. Scherpereel et al.], previously named radical pleurectomy by some, is a complete tumour removal of MPM but it cannot be considered a curative treatment by itself except at a very early (and very rare) stage of cancer [12. Rice et al.]. This is why it has been suggested that eP/D could be interesting if it was combined with an intra-operative treatment and adjuvant therapies (chemotherapy). Photo-dynamic therapy (PDT) is based on the rationale that tumour cells, previously treated with some photo-sensitiser drugs (by intravenous injection 24 hours before the eP/D), will die when exposed to light at the specific frequency for this drug. During surgery, the surgeon lights up the pleural cavity directly using a laser source (Fig. 1), inducing the production by tumour cells, having absorbed the photo-sensitising drug more rapidly eliminated by normal cells, of oxygen free radicals which kill tumour cells and the surrounding cells as well as the tumoural angiogenesis over a few millimetres. Interestingly, the PDT could also stimulate the anti-tumoural immune response with the tumour antigens released and the induced inflammatory reaction. So the PDT has been tested on patients with MPM in combination with EPP or eP/D, and a chemotherapy. A recent clinical trial Phase II by Friedberg et al. showed very promising survival results for MPM with the combination of an eP/D, but no EPP, an intro-operative PDT and chemotherapy (6 cisplatin-pemetrexed treatments), with a progression-free survival (PFS) and a median overall survival above 2 years [13. Friedberg et al.]. Many patients with MPM have benefited from this treatment since in Philadelphia. We are presently putting this multi-modal treatment into place in Lille, the national specialist centre for the treatment of MPM, with the help of our American colleagues through a feasibility study (with the support of the Regional Council for Nord-Pas de Calais). In case of success, a large Phase II multicenter randomised trial (2 x 45 patients with an epithelioid MPM) testing eP/D combined with an adjuvant chemotherapy (and preventative radiotherapy of the surgical scars) with or without intra-operative PDT, is being considered in 5 French specialist centres for MPM (funded by PHRC National Cancer 2013). This clinical trial will be combined with several ancillary studies (biological, PET, evaluation of photo-dynamic techniques). The main study criteria will be progression-free survival (objective of a PFS

§2. New treatments or therapeutic strategies for MPM.

of 2.1 years in the experimental group with PDT versus 11.6 months expected in the arm without PDT). The secondary judgement criteria will be overall survival, toxicity of the treatment and quality of life of patients. Our aim with this clinical trial is to improve the treatment and prognosis of patients, with the development of an innovating therapeutic strategy, and to demonstrate the contribution of PDT to the multi-modal treatment of MPM.

Figure 1. Pr Joseph Friedberg and his team performing an extended pleurectomy/decortication (eP/D) on a patient suffering from MPM at the University Hospital of Philadelphia (USA), with below left Pr Henri Porte (CHRU de Lille) during the resection of the tumour. On the right, at the end of the same surgical operation, the patient benefits from photo-dynamic therapy (PDT) by laser illumination of the pleural cavity in order to eliminate the remaining cancer cells. Within his/her multi-modal treatment, the patient receives chemotherapy and radiotherapy of the surgical scars after surgery. (Cf.

reference [13.

Friedberg et al.])

In the perspectives, we will also try, with the researchers from the INSERM U703 Unit (Pr Serge Mordon, Lille), to improve the technical solutions (“light tissue” monitoring . . . ) for the illumination of the pleural cavity to increase the eﬃciency and decrease the side eﬀects of PDT against MPM (Cf Figure 2) [14. Mordon et al.] and to demonstrate the interest of this new treatment strategy which include PDT compared to the current standard treatment, palliative of patients with MPM, i.e. chemotherapy alone with cisplatin and pemetrexed [2. Scherpereel et al.].

5. Treatment of malignant pleural mesothelioma – A. Scherpereel

Figure 2. Pr Serge Mordon (INSERM, Lille) presenting a possible improvement to the intrapleural PDT by using an innovative “light tissue” allowing a quicker and more even diffusion of laser light (Cf. reference [14. Mordon et al.])

3. Conclusion The care of patients suﬀering from MPM remains complex and still limited to date. However the standardisation of practices through international recommendations and the establishment of specialist centres for MPM within a national “MESOCLIN” network are two crucial elements to improve this care and in particular to facilitate and speed up the initial stage of diagnosis. The role of this network is equally vital to improve and spread knowledge of this cancer by favouring with all the people involved (patients, family members, associations, doctors, researchers, INCa, specialist Mesopath network, InVs1 , etc . . . ) the translational and epidemiological research works (compulsory notification . . . ) and the clinical trials for MPM. Thus, even if today you need to keep a cautious message for patients and their family, you can see the confirmation of the emergence of tools for an earlier and more reliable diagnosis, innovating and promising treatments for mesothelioma, thanks to all our endeavours. 1

Institut de veille sanitaire, Institute for Public Health Surveillance (editor’s note).

§3. Conclusion

Bibliography 1. Astoul P, Roca E, Galateau-Salle F, Scherpereel A. Malignant pleural mesothelioma: from the bench to the bedside. Respiration. 2012; 83(6) : 481-93. 2. A Scherpereel, P Astoul, P Baas, T Berghmans, H Clayson, P de Vuyst, H Dienemann, F Galateau-Salle, C Hennequin, G Hillerdal, C Le Péchoux, L Mutti, JC Pairon, R Stahel, P van Houtte, J van Meerbeeck, D Waller, and W Weder. Guidelines of the ERS/ESTS for management of Malignant Pleural Mesothelioma. Eur Respir J. 2010; 35(3) : 479-95. 3. Testa JR, Cheung M, Pei J, Below JE, Tan Y, Sementino E, Cox NJ, Dogan AU, Pass HI, Trusa S, Hesdorﬀer M, Nasu M, Powers A, Rivera Z, Comertpay S, Tanji M, Gaudino G, Yang H, Carbone M. Germline BAP1 mutations predispose to malignant mesothelioma. Nat Genet. 2011; 43(10) : 1022-5. 4. Chapman EA, Thomas PS, Stone E, Lewis C, Yates DH. A breath test for malignant mesothelioma using an electronic nose. Eur Respir Journal 2012;40(2) : 448-54. 5. Recommandations de la Société de Pneumologie de Langue Française sur le Mésothéliome pleural - Conférence d’experts - texte long. Rev. Mal. Respir. 2006; 4 (Sept) : 11S3-11S104. 6. Scherpereel A, T. Berghmans, J.J. Lafitte, B. Colinet, M. Richez, Y. Bonduelle, A.P. Meert, X. Dhalluin, N. Leclercq, M. Paesmans, L. Willems, J.P. Sculier for the European Lung Cancer Working Party (ELCWP). Valproate-doxorubicin: eﬀective therapy for progressing mesothelioma. A phase II study. Eur Respir J. 2011; 37: 129-35. 7. Poulikakos PI, Xiao GH, Gallagher R, Jablonski S, Jhanwar SC, Testa JR. Re-expression of the tumor suppressor NF2/merlin inhibits invasiveness in mesothelioma cells and negatively regulates FAK. Oncogene. 2006; 25(44) : 5960-8. 8. Lens M, Testori A, Ferucci PF. Ipilimumab targeting CD28-CTLA-4 axis: new hope in the treatment of melanoma. Curr Top Med Chem. 2012;12(1):61-6. 9. Van Schil PE, Baas P, Gaafar R, Maat AP, Van de Pol M, Hasan B, Klomp HM, Abdelrahman AM, Welch J, van Meerbeeck JP; European Organisation for Research and Treatment of Cancer (EORTC) Lung Cancer Group. Trimodality therapy for malignant pleural mesothelioma: results from an EORTC phase II multicentre trial.. Eur Respir J. 2010 Dec;36(6):1362-9.

5. Treatment of malignant pleural mesothelioma – A. Scherpereel

10. Hillerdal G, Sorensen JB, Sundström S, Riska H, Vikström A, Hjerpe A. Treatment of malignant pleural mesothelioma with carboplatin, liposomized doxorubicin, and gemcitabine: a phase II study. J Thorac Oncol. 2008 Nov;3(11):1325-31. 11. Treasure T, Lang-Lazdunski L, Waller D, Bliss JM, Tan C, Entwisle J, Snee M, O’Brien M, Thomas G, Senan S, O’Byrne K, Kilburn LS, Spicer J, Landau D, Edwards J, Coombes G, Darlison L, Peto J; MARS trialists. Extra-pleural pneumonectomy versus no extra-pleural pneumonectomy for patients with malignant pleural mesothelioma: clinical outcomes of the Mesothelioma and Radical Surgery (MARS) randomised feasibility study. Lancet Oncol. 2011; 12(8) : 763-72. 12. Rice D, Rusch V, Pass H, Asamura H, Nakano T, Edwards J, Giroux DJ, Hasegawa S, Kernstine KH, Waller D, Rami-Porta R; International Association for the Study of Lung Cancer International Staging Committee and the International Mesothelioma Interest Group. Recommendations for uniform definitions of surgical techniques for malignant pleural mesothelioma: a consensus report of the international association for the study of lung cancer international staging committee and the international mesothelioma interest group. J Thorac Oncol. 2011; 6(8): 1304-12. 13. Friedberg JS, Mick R, Culligan M, Stevenson J, Fernandes A, Smith D, Glatstein E, Hahn SM, Cengel K. Photodynamic therapy and the evolution of a lung-sparing surgical treatment for mesothelioma. Ann Thorac Surg. 2011; 91(6): 1738-45. 14. Mordon S, Cochrane C, Lesage JC, Koncar V. Innovative engineering design of a textile light diﬀuser for photodynamic therapy. Photodiagnosis and Photodynamic Therapy 2011; 8: 142-3.

Received 11 October 2013 Translated from French by Fleur Pettie

Chapter 6

A pathologist in the courtroom – The Eternit trial and the validation of the histological diagnoses of mesothelioma victims by Pier-Giacomo BETTA We describe our experience as medical expert for the oﬃce of the public prosecutor in the «Eternit trial» at the first instance court of Turin between 2009 and 2012.

1. The Eternit trial Since 1947, 1.800 people have died from malignant mesothelioma, much more often pleural than peritoneal, in Casale Monferrato, which was home to the biggest asbestos cement factory in Europe between 1906 and 1986. This locally aggressively invasive and untreatable tumor of the serous cavities (pleura, peritoneum and pericardium) did not only affect the workers in asbestos cement Eternit factory but also attacked, and is still attacking, the local population who had never set foot in the factory and simply lived close to it. More than 3,000 people who lost relatives to asbestos-related malignancies, or who suffered serious health problems, have sought damages in the Eternit trial against Stephan Schmidheiny and Jean Louis de Cartier, the key shareholders of the Eternit company, who were charged by the Public Prosecutor’s Office at the District Court of Turin with failing to take proper safety measures and of causing an intentional permanent environmental disaster. – 93 –

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The Eternit trial and the validation histological diagnoses of

6. A pathologist in the courtroom – P-G. Betta

mesothelioma victims

Pier-Giacomo B

!"#$%&"'()*"+$,''&%'-).)/#' The old Eternit factory in Casale Monferrato.

The Eternit trial held in the First Instance Court of Turin between 2009 and 2012, has been labeled by the mass media as the world’s biggest and longest-running asbestos-related trial and I have been involved in it as an expert medical witness for the Public Prosecutor’s Oﬃce, because of my nearly 30-year practice of surgical pathology in the asbestos-plagued Alessandria province, which includes Casale Monferrato, one of the nation’s hot spots for the mesothelioma. Due to this provincial mesothelioma outbreak and the role of the pathology laboratory at Alessandria City Hospital, which I headed between 1997 and 2011, as referral center for mesothelioma pathology, about 600 cases of mesothelioma were personally newly diagnosed or were seen in consultation in that period. 53#'!"#$%&"'"$&)/6'7$+.#*1"&+%'"#)4'

2. Validation of the histological diagnoses of mesothelioma victims Expert testimony of a pathologist specialized in the field of asbestos-related diseases is indispensable in any asbestos lawsuit in order to prove the diagnosis of malignant mesothelioma when dealing with an occupational or environmental disease aﬀecting serous cavities. In fact, on the one hand the pleura is one of those anatomic regions that most pathologists tend to ignore and, on the other hand, the challenge to diagnosis is among the several distinct defenses relied on by defendants. A reasonable degree of medical certainty about the diagnosis malignant mesothelioma can only be attained by means of pathological evidence based on microscopic examination of tissue samples taken from the victim, as the clinical course of mesothelioma may not be suﬃciently clear to distinguish it from other conditions. However, mesothelioma is notorious for morphological microscopic versatility and its capacity to mimic both reactive mesothelial proliferation and other neoplasms, notably adenocarcinomas and sarcomas metastatic to serous cavities. A confident diagnosis of mesothelioma requires fulfillment of two criteria:

§2. Validation of the histological diagnoses of mesothelioma victims

1) demonstration of the malignant behavior of the cellular proliferation, thereby excluding a reactive mesothelial proliferation, and 2) the identification of the mesothelial origin of the cellular proliferation to exclude other neoplasms. An in-vivo biopsy diagnosis of mesothelioma was rejected for many decades until early ‘80s following the ancient theory of Willis, who stated in his renowned textbook of tumor pathology that “while the possible occurrence of primary neoplasms of coelomic membranes (i.e. mesotheliomas) cannot be denied, the great majority of cases so reported are certainly only examples of serosal diseases secondary to undiscovered primary tumours in neighbouring viscera”; “. . . in no case can a diagnosis of mesothelioma be seriously considered unless the most painstaking post-mortem investigation of all organs has been carried out”. In addition, the most recent guidelines for pathological diagnosis of malignant mesothelioma issued by scientific organizations (European Respiratory Society-European Society of Thoracic Surgeons 2010; International Mesothelioma Interest Group 2012) recommend the use of immunohistochemistry [i.e. the process of detecting antigens (e.g., proteins) in cells of a tissue section by exploiting the principle of antibodies binding specifically to antigens in biological tissues], recognizing that immunohistochemical panels are integral to the diagnosis of malignant mesothelioma. Finally, it needs to be emphasized that a history of asbestos exposure, or the lack thereof, is of no relevance in making a pathologic diagnosis of mesothelioma: what a history of asbestos exposure may provide is a cause of the tumor in question, but it is certainly not a part of a routine diagnosis. As a Technical Consultant for the Public Prosecutor’s Oﬃce, I was required to validate the histological diagnosis for each asbestos victim aﬀected by mesothelioma who had pursued legal action against Eternit company. Therefore I had to review the histopathological reports of each claimant with mesothelioma and in addition each diagnosis had to comply with the guidelines concerning the updated immunohistochemical approach which require the use of a panel of at least 4 tissue markers, 2 mesothelial markers and 2 markers for the other tumor under consideration on the basis of the microscopic morphology (e.g. adenocarcinoma, squamous cell carcinoma). At the end of this work, 178 patients with an unequivocal diagnosis of malignant mesothelioma and deceased in the period 1990-2007, were included in the criminal charge of the Eternit trial and the report of my findings was made available to the court.

6. A pathologist in the courtroom – P-G. Betta

The two main diagnostic problems in the histopathologic setting (Left) malignant mesothelioma (MM) versus other malignant tumors metastatic to the pleura/peritoneum (Right) malignant versus reactive mesothelial proliferations

A diagnosis of mesothelioma in a given case was considered unequivocal or definite in the presence of a characteristic microscopic morphology associated with an immunohistochemical evidence of the mesothelial histogenesis (positive tissue immunoreactions for at least 2 mesothelial markers and negative immunostaining for at least 2 non-mesothelial markers). It is worth mentioning that 138 out of these 178 mesothelioma victims had lived in Casale Monferrato with no history of professional exposure to asbestos. This work experience was also credited with scientific value recognized by the publication in the March 2012 issue of “Archives of Pathology and Laboratory Medicine” (the oﬃcial journal of the College of American Pathologists) of a paper dealing with the immunohistochemical work-up of tissue specimens of serous membranes for diagnostic purposes and mainly based on the findings of the mesothelioma cases of the Eternit trial. Reference [1] Betta PG, Magnani C, Bensi T, Trincheri NF, Orecchia S. Immunohistochemistry and Molecular Diagnostics of Pleural Malignant Mesothelioma. Arch Pathol Lab Med. 2012;136:253–261; doi: 10.5858/ arpa.2010-0604-RA. Received 9 March 2013

Chapter 7

Genotoxicity of asbestos fibres. Biological approach Marie-Claude JAURAND This article reviews issues concerning the carcinogenicity of asbestos fibres and summarizes results obtained in the domain of genotoxicity.

1. Introduction Studies on the health effects of asbestos fibres have focused on various aspects of research. Numerous epidemiological studies aimed at identifying the populations at risk and at defining the levels of risk in various environments, according to the different uses of asbestos, jobs, tasks or materials used. Experimental studies on animals demonstrated the relationships between exposure to asbestos and pathologies, and studies of living cells in culture showed the cellular response to fibres. These various researches have helped to identify the mechanism of action of asbestos in organs and cells as well as the molecular alterations which occur following exposure to the fibres. In addition to these, in vitro studies in acellular environment helped to determine the biochemical properties of fibres which could affect toxicity. Although our knowledge about the mechanism of action needs to be improved, these studies provided an insight and hypotheses on the mechanism of action of asbestos fibres [1, 2]. The major pathologies associated with exposure to asbestos are fibrosis and cancer, mainly in the pleura and the lung, due to the nature of the exposure to asbestos fibres which is principally by inhalation, but peritoneal mesothelioma has also been observed in asbestos-exposed patients [3, 4]. More recently, cancer of the larynx and ovarian cancer have been linked to exposure to these fibres [5]. – 97 –

7. Genotoxicity of asbestos fibres â€“ M-C. Jaurand

Among these pathologies, pleural mesothelioma (cancer resulting from the transformation of the mesothelial cells of the pleura) has stimulated a large amount of research, despite its lower frequency compared to other respiratory diseases. There are several reasons for this : on the one hand, this disease was not clearly identified as pleural cancer before the publication of the study by Wagner et al [6], which reported a high level of mesotheliomas in the province of the Cape in South Africa, among the workers of asbestos mines and among the population of that region. On the other hand, mesothelioma is a severe form of cancer, resistant to conventional antitumour therapies (chemotherapy, radiotherapy and surgery) which requires the development of specific therapeutic strategies to treat patients suďŹ€ering from mesothelioma. To reach this objective, it is necessary to gather data in order to understand the modifications induced by asbestos in mesothelial cells, in order to repair or eliminate anomalies, or to destroy tumour cells. This paper will address the issues related to the carcinogenic process and will summarise the results obtained on the genotoxicity of asbestos fibres. The genotoxic eďŹ€ects are at the basis of the alterations of the genetic material of cells exposed to a carcinogen, and will cause the development of abnormal cells able to progress to tumour cells and form a tumour. In addition to the studies of genotoxicity, other types of researches are mentioned in this paper, because they are linked to the action mechanism of asbestos fibres.

2. Toxicology of asbestos fibres and context of mechanical studies 2.1.The fate of asbestos fibres after inhalation The question as to whether asbestos fibres can reach the pleura, after inhalation, has long been debated. It has now been established that they migrate and reach the pleura through a mechanism called translocation. The particles which are deposited in the respiratory airways are eliminated through various mechanisms (activity of the mucociliary escalator, macrophages, lymphatic system). Nevertheless, a fraction of these particles remains in the lung while others migrate to other sites. The translocation of asbestos fibres to the pleura has been demonstrated through studies of human pleura and animal, showing the presence of fibres in the pleural tissue (see next page, Figure 1) [7, 8].

§2. Toxicology of asbestos fibres and context of mechanical studies

A Nb of fibres/g of dry tissue (x106)

Lung Pleura, normal areas Pleura, anthracotic areas

20 15 10 5 0

Unexposed

Nb de fibres/lung or pleura

Asbestos exposed

5 days after exposure 32 days after exposure

1,E+08 1,E+06 1,E+04 1,E+02 1,E+00 Lung

Pleura

Figure 1. Translocation of the inhaled fibres to the pleura. Detection of fibres in the pleura. A. Asbestos fibres detected in the lung and the pleura of subjects exposed to asbestos, in particular in the anthracosis areas («black spots»). From Boutin et al. [7]. B. Experimental studies on rodents by inhalation. In this case, refractory ceramic fibres. Fibres are detected in the lung (green bars) shortly after exposure, as well as translocation to the pleura and in the pleura (red bars). From Gelzleichter et al. [8].

The deposition and retention of roughly-round particles in the respiratory apparatus depends on their size ; only the smallest (< 5 µm in diameter) can reach the lung, whereas the largest are deposited in the respiratory upper tract [9]. Fibres can reach the lung because of their small diameter. This specificity is important to explain the eﬀects of asbestos fibres. 2.2. Experimental studies carried out to determine the eﬀects of asbestos fibres In order to define the type of experimental studies performed to understand the mechanism of action of asbestos, the conditions of the experimental studies are summarised briefly in Figure 2. In culture, the cells which are most often used are the macrophages, mesothelial cells and pulmonary,

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7. Genotoxicity of asbestos fibres – M-C. Jaurand

bronchial or tracheal epithelial cells. In animals the eﬀects are most frequently studied in rats. Suspension of the particles in culture medium, or aerosolisation

Delay post exposure

Exposure

Study of effects

Incubation with particles days, weeks

cells • Particles deposition - trachea - pleura, peritoneum • Inhalation

Up to ≈ 2 years

• Cell viability • Inflammation • Cell proliferation • Molecular responses • Genotoxicity • Lesions in tissues (fibrosis, cancer, mutations, other…)

animals

Figure 2. Experimental stages for studying the eﬀects of asbestos fibres. For in vitro experiments with cells in culture, the fibres are suspended in the culture medium, then added to the cultures. For animal in vivo experiments, fibres are aerosolised for inhalation studies.

Animals can also be exposed by injecting the fibres in the

trachea or in the pleural or peritoneal cavities.

Cells and control

animals, not exposed to the fibres, are also used as controls. After defined durations of exposure, the effects are assessed with different methods giving specific data on cellular response, including genotoxicity.

In animals, cell alterations, morphological and mole-

cular are determined.

2.3.The carcinogenic process Carcinogenesis is a multi-step process, during which the cells acquire new characteristics. In order to put genotoxicity in the context of the evolution of a tumour, Figure 3 summarises the various stages in the process of tumour evolution. Tumour evolution is a complex process. We must be aware that, in a tissue or a tumour, the cells are not isolated but located in a micro-environment containing connective tissue and other cells. The microenvironment can facilitate cell evolution and tumour formation [10-12].

ยง2. Toxicology of asbestos fibres and context of mechanical studies

101

Carcinogenic$ agents$

Cell$death$

DNA$and$ chromosome$ $damage$

Error=free$DNA$ repair$

Normal$cell$

Damaged$7ssue$

Error=prone$DNA$$ repair$

Possible$regenera7on$of$ epithelial$or$mesothelial$7ssue$ from$normal$cells$

Muta7ons,$deregula7on$ of$normal$gene$ expression$

Progression$steps$

Genomic$instability$

New$cell$characteris7cs$ Selection and proliferation of transformed cells

Tumour$

Figure 3. Carcinogenesis. This figure summarises the various stages of the process of tumour evolution and the genotoxicity. Carcinogenic agents induce damages to the DNA. These damages can be correctly repaired or can induce cell death. However damages can persist or the mecanism of repair can generate errors (error prone mechanism). If the alterations of the cells persist, it can result a selection and proliferation of damaged cells, leading to deregulation of gene expression, cell dysfunction and instability of the genetic material. During this process, the cells acquire new characteristics which enable them to proliferate and escape from the mechanisms controlling the integrity of cells. Then the cells acquire progressively the characteristics needed to develop a tumour. In these processes, mutations play an important role, by modifying the quantity and/or the quality of the genes which regulate the functions of normal cells. Among the changes occurring during these processes, one can note a modification of the dependence on growth factors for proliferation, a resistance to signals inducing cell death, the production of factors favouring the growth of blood vessels in the micro-environment of the cells, the sustained cell division (immortalisation and evasion from senescence), the production of factors inducing migration and invasion, the inactivation of tumour suppressor genes and oncogenes, the modification and reprogramming of cellular metabolism, and the development of mechanisms of non recognition or resistance to the immune system [34]. It should be noted that a tumour is heterogeneous, with cells having evolved differently, this partly explains why the treatments are not always working, because they do not target all cells types.

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7. Genotoxicity of asbestos fibres – M-C. Jaurand

3. Hypotheses on the mechanism of action of asbestos fibres 3.1.Cellular responses to asbestos fibres 3.1.1. Interaction with the cells The internalisation of fibres by the cells is an important mechanism of cellular response. Beside the macrophages which are cells specialised in the elimination of foreign bodies such as bacteria and inhaled particles, the pulmonary epithelial cells and the mesothelial cells have the capacity to internalise the fibres. The process of phagocytosis involves a stage of interaction of fibres with the cell membrane that surrounds the fibres and engulfs them in phagocytic vacuoles. When the fibres are of a significant length, compared to the size of the cell and to its capacity of internalisation, the phagocytosis is incomplete (it is called “frustrated phagocytosis”) (Figure 4). The interaction between the cells and the fibres leads to the production of inflammatory factors which attract other cells responsible for the elimination of foreign bodies and amplify the inflammatory reaction. The release of factors outside the cell may also damage the cells and the surrounding environment. 3.1.2. Genotoxicity Genotoxicity studies were carried out to identify the alterations of the DNA structure and cellular chromosomes. In epithelial and mesothelial cells, they highlighted a base hydroxylation and DNA breakage when cells were exposed to asbestos fibres [13]. Researches have been carried out to determine the mechanism which caused these alterations. These alterations are the consequence of oxidative stress, a cellular response to fibre internalisation and interaction of the fibres with the cells. This process generates reactive oxygen species (ROS) and reactive nitrogen species (RNS) which damage DNA, such as hydrogen peroxide and radical species [14, 15]. When mesothelial cells have been exposed to crocidolite, it was shown that the phagocytosis was associated with intra-cellular oxidation and DNA breaks, as the prevention of phagocytosis prevented these eﬀects [16]. The radical species can also be generated during the inflammatory reaction ; they are unstable, but have the capacity to react with other molecules and form more stable reactive species.

§3. Hypotheses on the mechanism of action of asbestos fibres

103

“frustrated phagocytosis”

macrophage fibres

fibres particles

gene expression

Inflammatory factors

Figure 4. Cellular response to asbestos fibres. Phagocytosis is an important mechanism within the process of fibre toxicity. The fibres internalised by the alveolar macrophages can be phagocyted and eliminated without damage. However, due to their shape and size, they can cause damage to the micro-environment tissue and/or cells, through the production of inflammatory factors, either directly, or because of a frustrated phagocytosis or an interaction with the cellular constituents. (a) Mesothelial cells having phagocyted asbestos fibres; (b) scanning electron microscopy; (c) transmission electron microscopy.1

Recurrent chromosomal abnormalities have been reported in cells exposed to asbestos; they consist of changes in the number (aneuploidy and 1 Besides the damage to DNA, asbestos fibres induce mitotic anomalies. The observation of mesothelial cells exposed to asbestos fibres shows that fibres are found in dividing cells (mitosis) and intermingled with the chromosomes [35]. The exposure of the cells to the fibres results in various mitotic anomalies (abnormal segregation of chromosomes, breakage, excess or deficit of chromosomes). Chromosomal anomalies have been highlighted, altering either the number of chromosomes (aneuploidy) or their structure. (A) Aneuploidy in pleural mesothelial cells of rats treated with asbestos fibres. (B) Mitotic anomalies detected in the anaphase and telophase of the mitosis, in the pleural mesothelial cells of rats treated with asbestos fibres. These alterations lead to a chromosomal instability which completely modifies the physiological balance of the cell which acquires specific characteristics making it diﬀerent from normal cells. (C) The figure summarises the diﬀerent stages of the mitosis. Apart : mesothelial cell in mitosis, in which can be detected, in transmission electron microscopy, the presence of asbestos fibres (above) ; abnormal segregation of chromosomes (arrow) (below).

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polyploidy) and structure of chromosomes in daughter cells during mitosis [17, 18]. The exact mechanism is unknown, but the presence of the fibres in mitotic cells can have a mechanical impact (interaction with the mitotic spindle) and modify the kinetics of cellular division. However, cells have their own systems to control the integrity of their genetic material. They have systems which repair DNA lesions, but if some achieve an accurate repair, others cause repair defects. Some lesions can also be ignored. Finally, the alterations which have been generated will cause mutations which play a role in the process of carcinogenesis. If the mutations occur in DNA repair genes, it can increase genetic instability and favour tumour progression [12]. Despite the mechanisms of repair and control of cellular integrity, damaged cells remain and are capable of transmitting lesions to daughter cells during cellular division and of generating tumour cells over time. From these studies it was concluded that asbestos fibres are genotoxic substances, inducing alterations to genetic material. Their effects occur at different stages of the tumour progression because DNA and chromosome mutations are not necessarily limited to the initial stages of the process. In particular, it is suggested that biopersistent fibres such as asbestos can cause a localised long-lasting inflammatory response, generating molecules such as the ROS/RNS, growth factors and inflammatory factors. Nevertheless, this does not exclude the possibility that early genotoxic effects may have longlasting effect on the cells. 3.1.3. Cell activation Cellular response to asbestos fibres is also characterised by an activation of the pathways which govern the functions of the cell such as the signalling from the cell membrane to the nucleus (called signalling pathways). At low concentrations, it concerns pathways which activate cell proliferation and mitosis (Akt and Erk pathways) [19]. 3.2.Animal experiments with asbestos fibres Most of the work on identifying the genotoxic effects of asbestos fibres have been done on culture cells. Some studies carried out on animals have also highlighted mutations, hydroxylation of bases and DNA breaks [20-22]. Besides, a comparison was made between molecular abnormalities in human mesothelioma and mesothelioma developed in transgenic mice exposed to asbestos. Some mutated genes and some frequently altered chromosomal regions were observed with a high frequency in human mesothelioma as well as mesothelioma induced by asbestos in mice [23, 24].

§4. Studies on human mesothelioma

105

3.3.Fibres characteristics in relation to their carcinogenic potential Biological studies have permitted to clarify the mechanism of action of asbestos fibres at organ and cell level. At the same time, the question was raised whether the fibres had intrinsic properties playing a role in the toxicity. Various studies have shown that some physico-chemical parameters of the fibres play a role in the toxicity. Thus the fibrous shapes, the size, the surface reactivity and the chemical composition, the metallic elements in particular modulate the eﬀect [25, 26]. The biopersistence, which means the half-life time of the fibres in the lung, is considered as a leading parameter for the development of pathologies linked to the exposure to the fibres [27]. In fact, this parameter reflect the intrinsic properties of the fibres. As mentioned above, the biopersistence depends on the clearance and translocation of the fibres, mechanisms which are themselves dependent on the size and surface properties of the fibres (interaction with biomolecules and cells). Table 1 summarises these parameters, the justifications and consequences.

4. Studies on human mesothelioma One of the diﬃculties of cancer treatment lies in the variety of the tumours. They are not all identical, even among the same type of cancer such as mesothelioma. A deeper knowledge of the tumour characteristics allows for treatments that are more appropriate, more specific to the changes in the tumour. During the last few years, researches in the field of mesothelioma treatment has focused on molecular approaches. The establishment of a molecular classification of mesothelioma serves a threefold purpose : to improve the diagnosis, to clarify the prognosis and to adapt the treatment. The molecular diversity of mesothelioma is well known; where there are three major histological types (epithelioid, sarcomatoid and biphasic) and several rarer sub-types. At the moment, the characterisation of mesothelioma can be improved through large scale molecular studies (high-throughput genomics, epigenetics and transpictomics). Research is evolving in this direction, to identify the alterations of mesothelial cells and the characteristics they acquire during the carcinogenic process. Today studies have been able to associate the survival of patients to diﬀerent groups of mesothelioma [28, 29]. This opens the way to more appropriate treatment. To summarize, mesotheliomas are characterised by numerous chromosomal abnormalities involving alterations of both the structure and the number of chromosomes. Among the “cancer genes” (oncogenes and tumour suppressor genes), no oncogene has been clearly involved, apart from a recent publication showing a recurrent oncogenic activation in the promoter of the TERT gene suggested to play a role in the initiation of certain tumours [30]. On the other hand, several tumour suppressor genes (BAP1, CDKN2A and

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7. Genotoxicity of asbestos fibres – M-C. Jaurand

CDKN2B, NF2, TP53) present mutations, sometimes in high frequencies. The tumour suppressor genes play a role in key cellular functions (regulation of the proliferation, control of cell death, stabilisation of cellular membranes). Mesothelioma shows a deregulation or disturbance of the mechanisms which control the normal functions of the cells, such as the cell cycle regulation, mitogenic signalling and cell death pathways [28]. These alterations can be the consequence of mutations in the genes involved in these diﬀerent pathways, or of changes in the cellular micro-environment, which produces signals that are diﬀerent from those received in a normal environment.

5. Conclusions The studies which looked at the action mechanisms of asbestos fibres have highlighted pulmonary and cellular eﬀects also observed with inflammatory, genotoxic and carcinogenic agents. The cells of animals exposed to fibres and the culture cells have shown alterations of their genetic material which confirm a genotoxic potential of asbestos fibres. The consequences of these alterations do not necessarily appear in the short term, because of possible repairs, but mainly because tumour evolution is a multi-stage process which is spread over time. The appearance of tumours, sometimes a long time after exposure, reflects this evolution. In order to gather the clinical and research teams interested in mesothelioma, an international group, IMIG (International Mesothelioma Interest Group) has been created during the first international conference devoted to the biology and pathology of mesothelial cells, which was held in Paris in 1991 [31]. The objectives were to improve the knowledge of mesothelioma and to facilitate collaboration between the teams. Significant advances to be noted are the implementation of the comparison between clinical trials and the finalisation of the guidelines for the diagnostic of mesothelioma and patient care [32, 33]. The group will meet, with the teams working on mesothelioma, at an International Conference in 2014, in South Africa, to assess the current progress (http://imig2014.org). This conference is of symbolic significance due to its location, the same where the link between exposure to asbestos and mesothelioma was highlighted. A report will be published on the website (www.imig.org). Received 11 October 2013 Translated from French by Fleur Pettie

§5. Conclusions

107

Table 1. Parameters of fibres Parameter Shape

Dimensions

Surface reactivity

Chemical composition

Experimental proof Non-fibrous particles of the same chemical composition (fibre eﬀect) The ‘long’ fibres are more active than the ‘short’ fibres in cultured cells and in animals Sorption properties

Production of reactive oxygen or nitrogen species (free radicals) Presence of particular contaminants (metals, hydrocarbons)

Biopersistance Defines the length of retention of fibres in the lung (half-life)

Consequences Risk of long fibres remaining in the lungs Diﬀerence in the deposit, retention and lung clearance Incomplete phagocytosis of long fibres Adsorption of pollutants, of biological macromolecules Species with potential for damaging DNA and cells Role in producing free radicals (metals) ; vector of carcinogenic chemical components Biopersistence depends on size, surface reactivity and possible solubility of the fibres ; it regulates the dose in retention

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6. Bibliography 1. INSERM: Eﬀets sur la santé des principaux types d’exposition à l’amiante. Expertise Collective. Paris: Les Editions INSERM; 1997. 2. Jaurand MC, Pairon JC: Historique de la toxicité des particules. In: Les nanosciences - Nanotoxicologie et nanoéthique. Volume 4, edn. Edited by Houdy P, Lahmani M, Marano F. Paris: Belin; 2010: 40-72. 3. Broaddus VC, Everitt JI, Black B, Kane AB: Non-neoplastic and neoplastic pleural endpoints following fiber exposure. J Toxicol Environ Health B Crit Rev 2011, 14(1-4):153-178. 4. Mossman BT, Lippmann M, Hesterberg TW, Kelsey KT, Barchowsky A, Bonner JC: Pulmonary endpoints (lung carcinomas and asbestosis) following inhalation exposure to asbestos. J Toxicol Environ Health B Crit Rev 2011, 14(1-4):76-121. 5. Camargo MC, Stayner LT, Straif K, Reina M, Al-Alem U, Demers PA, Landrigan PJ: Occupational exposure to asbestos and ovarian cancer: a meta-analysis. Environ Health Perspect 2012, 119(9):1211-1217. 6. Wagner JC, Sleggs CA, Marchand P: Diﬀuse pleural mesothelioma and asbestos exposure in the North Western Cape Province. Br J Ind Med 1960, 17:260-271. 7. Boutin C, Dumortier P, Rey F, Viallat JR, Devuyst P: Black spots concentrate oncogenic asbestos fibers in the parietal pleura: thoracoscopic and mineralogic study. Amer J Respir Crit Care Med 1996, 153(1):444449. 8. Gelzleichter TR, Bermudez E, Mangum JB, Wong BA, Everitt JI, Moss OR: Pulmonary and pleural responses in Fischer 344 rats following shortterm inhalation of a synthetic vitreous fiber .1. Quantitation of lung and pleural fiber burdens. Fund Appl Toxicol 1996, 30(1):31-38. 9. Oberdorster G, Oberdorster E, Oberdorster J: Nanotoxicology: an emerging discipline evolving from studies of ultrafine particles. Environ Health Perspect 2005, 113(7):823-839. 10. Loeb LA, Loeb KR, Anderson JP: Multiple mutations and cancer. Proc Natl Acad Sci U S A 2003, 100(3):776-781. 11. Nicholson JM, Duesberg P: On the karyotypic origin and evolution of cancer cells. Cancer Genet Cytogenet 2009, 194(2):96-110. 12. Tubiana M: Généralités sur la cancérogenèse. C R Biol 2008, 331(2):114125.

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13. Huang SX, Jaurand MC, Kamp DW, Whysner J, Hei TK: Role of mutagenicity in asbestos fiber-induced carcinogenicity and other diseases. J Toxicol Environ Health B Crit Rev 2011, 14(1-4):179-245. 14. Jaurand MC: Mechanisms of fiber-induced genotoxicity. Environ Health Perspect 1997, 105(Suppl 5):1073-1084. 15. Jaurand MC, Levy F: Eﬀets cellulaires et moléculaires de l’amiante. médecine sciences 1999, 15(12):1370-1378. 16. Liu W, Ernst JD, Broaddus VC: Phagocytosis of crocidolite asbestos induces oxidative stress, DNA damage, and apoptosis in mesothelial cells. Am J Respir cell Mol Biol 2000, 23:371-378. 17. Yegles M, Janson X, Dong HY, Renier A, Jaurand MC: Role of fibre characteristics on cytotoxicity and induction of anaphase/telophase aberrations in rat pleural mesothelial cells in vitro. Correlations with in vivo animal findings. Carcinogenesis 1995, 16(11):2751-2758. 18. Yegles M, Saint-Etienne L, Renier A, Janson X, Jaurand MC: Induction of metaphase and anaphase/telophase abnormalities by asbestos fibers in rat pleural mesothelial cells in vitro. Amer J Respir Cell Mol Biol 1993, 9(2):186-191. 19. Mossman BT, Shukla A, Heintz NH, Verschraegen CF, Thomas A, Hassan R: New insights into understanding the mechanisms, pathogenesis, and management of malignant mesotheliomas. Am J Pathol 2013, 182(4): 1065-1077. 20. Jung M, Davis WP, Taatjes DJ, Churg A, Mossman BT: Asbestos and cigarette smoke cause increased DNA strand breaks and necrosis in bronchiolar epithelial cells in vivo. Free Rad Biol Med 2000, 28:1295-1299. 21. Unfried K, Schürkes C, Abel J: Distinct spectrum of mutations induced by crocidolite asbestos : clue for 8-hydroxydeoxyguanosine-dependent mutagenesis in vivo. Cancer Res 2002, 62:99-104. 22. Yamaguchi R, Hirano T, Ootsuyama Y, Asami S, Tsurudome Y, Fukada S, Yamato H, Tsuda T, Tanaka I, Kasai H: Increased 8-hydroxyguanine in DNA and its repair activity in hamster and rat lung after intratracheal instillation of crocidolite asbestos. Jpn J Cancer Res 1999, 90(5):505-509. 23. Lecomte C, Andujar P, Renier A, Kheuang L, Abramowski V, Mellottee L, Fleury-Feith J, Zucman-Rossi J, Giovannini M, Jaurand MC: Similar tumor suppressor gene alteration profiles in asbestos-induced murine and human mesothelioma. Cell Cycle 2005, 4(12):1862-1869.

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24. Jean D, Thomas E, Renier A, de Reynies A, Lecomte C, Andujar P, Fleury-Feith J, Giovannini M, Zucman-Rossi J, Stern MH et al: Syntenic relationships between genomic profiles of fiber-induced murine and human malignant mesothelioma. Am J Pathol 2011, 176(2):881-894. 25. AFSSET: Les fibres courtes et les fibres fines d’amiante, 2009. http://www.anses.fr/fr/content/fibres-courtes-d’amiante English version: AFSSET report : Short asbestos fibres. http://www.anses.fr/fr/node/92802 26. Fournier J, Guignard J, Nejjari A, Zalma R, Pezerat H: The role of iron in the redox surface activity of fibres, relation to carcinogenicity. In: Mechanisms in Fiber Carcinogenesis: 1991: Plenum Press; 1991: 407414. 27. Sanchez VC, Pietruska JR, Miselis NR, Hurt RH, Kane AB: Biopersistence and potential adverse health impacts of fibrous nanomaterials: what have we learned from asbestos? Wiley Interdiscip Rev Nanomed Nanobiotechnol 2009, 1(5):511-529. 28. Jean D, Daubriac J, Le Pimpec-Barthes F, Galateau-Salle F, Jaurand MC: Molecular changes in mesothelioma with an impact on prognosis and treatment. Arch Pathol Lab Med 2012, 136(3):277-293. 29. Lopez-Rios F, Chuai S, Flores R, Shimizu S, Ohno T, Wakahara K, Illei PB, Hussain S, Krug L, Zakowski MF et al: Global gene expression profiling of pleural mesotheliomas: overexpression of aurora kinases and P16/CDKN2A deletion as prognostic factors and critical evaluation of microarray-based prognostic prediction. Cancer Res 2006, 66(6):29702979. 30. Tallet A, Nault JC, Renier A, Hysi I, Galateau-Salle F, Cazes A, Copin MC, Hofman P, Andujar P, Le Pimpec-Barthes F et al: Overexpression and promoter mutation of the TERT gene in malignant pleural mesothelioma. Oncogene 2013. 31. Conférence internationale sur la cellule mésothéliale et le mésothéliome. 30. September 1991 - 2. October 1991 Eur Respir Rev 1993, 3. 32. Husain AN, Colby T, Ordonez N, Krausz T, Attanoos R, Beasley MB, Borczuk AC, Butnor K, Cagle PT, Chirieac LR et al: Guidelines for Pathologic Diagnosis of Malignant Mesothelioma: 2012 Update of the Consensus Statement from theInternationalMesotheliomaInterest Group. Arch Pathol Lab Med 2012.

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33. Scherpereel A, Astoul P, Baas P, Berghmans T, Clayson H, de Vuyst P, Dienemann H, Galateau-Salle F, Hennequin C, Hillerdal G et al: Guidelines of the European Respiratory Society and the European Society of Thoracic Surgeons for the management of malignant pleural mesothelioma. Eur Respir J 2010, 35(3):479-495. 34. Hanahan D, Weinberg RA: Hallmarks of cancer: the next generation. Cell 2011, 144(5):646-674. 35. Wang NS, Jaurand MC, Magne L, Kheuang L, Pinchon MC, Bignon J: The interactions between asbestos fibers and metaphase chromosomes of rat pleural mesothelial cells in culture. A scanning and transmission electron microscopic study. Am J Pathol 1987, 126:343-349.

Part II

State of the World

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Chapter 8

Charting the Changing Pattern of Asbestos Production and Use 1950-2012 by Laurie KAZAN-ALLEN A global double standard on asbestos exists in the 21st century; even as developed nations have banned or seriously restricted its use, demand in some industrializing countries remains strong. A recent analysis of data documenting the global asbestos trade reveals significant trends in output and demand over the last sixty years1 . Included in this article are a number of charts and maps which were produced for presentations by the International Ban Asbestos Secretariat (IBAS) to illustrate the changes which have taken place; they are now available for general use and may be copied from this article or from a new Graphics Page2 we are developing, where additional formats and higher resolution maps are available.

1. Asbestos Production 1950 – 2011. As can be seen from pie charts 1-2, during the middle of the 20th century, Canadian asbestos mines were dominant. In 1950, the top three producing countries accounted for 85% of all output. 1 The asbestos production and consumption data on which the charts in this article are based are obtained from the United States Geological Survey (USGS). In providing the data the USGS point out diﬃculties in obtaining reliable data from some countries in a timely manner. There are also irregularities resulting from stockpiling which make assessment of asbestos consumption by nations which are also producers problematic. However, for the purposes of the charts we have used the annual data “as is” with no attempt to correct for such factors. 2 URL : http://ibasecretariat.org/graphics page.php

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8. Pattern of Asbestos Production and Use â€“ L. Kazan-Allen

Diagram 1. Global asbestos fiber production, 1950 Canada (61.5%), USSR (16.9%), South Africa (6.1%), South Rhodesia (5%), United States(2.9%), Swaziland (2.3%), Italy (1.7%), Cyprus (1.2%), Others (0.9%), Finland (0.8%), France (0.6%). Others: around 20 smaller producer countries for which data were gathered.

Within thirty years, however, the situation had changed; although the number of countries mining asbestos remained constant at around thirty, there was an increase in the number of major players. Whereas in 1950 Canada, the USSR and South Africa accounted for 84.5% of all global output, in 1980, 87% of production took place in: the USSR, Canada, South Africa, South Rhodesia and China. Perhaps, the most significant diďŹ€erence between pie charts 1 & 2 is the fact that by 1980, Russian output had overtaken Canadian.

Â§1. Asbestos Production 1950 â€“ 2011.

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Diagram 2. Global asbestos fiber production, 1980 URSS (43.0%), Canada (27.5%), South Africa (5.8%), South Rhodesia (5.2%), China (5.2%), Brazil (3.5%), Italy (3.3%), Others (2.2%), Australia (1.9%), United States (1.7%), Cyprus (0.7%). Others: around 20 smaller producer countries for which data were gathered.

Source : based on USGS data. By 2011 (chart 3), production in Canada and most other countries had virtually ceased leaving Russia, China, Kazakhstan and Brazil to fulfil worldwide asbestos demand. TABLE : Global Asbestos Production and Consumption Data (tonnes) during years 1950, 1980 and 2011 Year 1950 1980 2011

Production 1.290.463 4.811.942 2.034.700

Consumption 1.266.929 4.728.619 2.066.649

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8. Pattern of Asbestos Production and Use – L. Kazan-Allen

Diagram 3. Global asbestos fiber production, 2011. Russia (49.1%), China (21.6%), Brazil (14.9%), Kazakhstan (11.0%), Canada (2.5%), India (0.9%).

Source : based on USGS data.

2. Asbestos Consumption 1950 – 2011 Pie charts 4-5 clearly show the dramatic growth in the number of asbestosusing countries between 1950 and 1980. In the post-World War II period, the U.S. accounted for 51.5% of all consumption; 33.5% of total demand in 1950 came from 45 other nations. Although the USSR had emerged as the world’s biggest asbestos market by 1980, increasing demand was observed in scores of countries. Total worldwide usage almost quadrupled in thirty years from 1,266,929 tonnes in 1950 to 4,728,619 tonnes in 1980. By 2011 (chart 6), Russia had been supplanted by China as the world’s biggest asbestos market, with India in second place. Of the 50 countries accounting for nearly 85% of all use, only 35 consumed more than 500 tonnes of asbestos/year.

Â§2. Asbestos Consumption 1950 â€“ 2011

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Diagram 4. Global asbestos fiber consumption, 1950. United States (51.5%), USSR (10.7%), Others (9.6%), United Kingdom (8.4%) Germany (7.3%), Canada (3.2%), France (3.0%), Italy(1.9%), Belgium (1.7%), Australia (1.4%), Czecoslovakia (1.2%). Others: around 40 smaller consumers listed by USGS. Notes: figure for Germany is the combined percentage for East and West Germany; Belgium, above refers to Belgium and Luxembourg.

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8. Pattern of Asbestos Production and Use â€“ L. Kazan-Allen

Diagram 5. Global asbestos fiber consumption, 1980. USSR (30.4%), Others (25.3%), Germany (9.1%), Japan (8.2%), United States (7.4%), China (5.0%), Brazil (4.0%), Italy (3.7%), France (2.6%), Canada (2.2%), India (2.0%). Others: around 70 smaller consumers listed by USGS. Notes: figure for Germany is the combined percentage for East and West Germany

Â§2. Asbestos Consumption 1950 â€“ 2011

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Diagram 6. Global asbestos fiber consumption, 2011. China (30%), India (15.4%), Russia (12.0%), Brazil (8.9%), Others (7.6%), Kazakhstan (7.4%), Indonesia (5.9%), Thailand (3.9%), Sri Lanka (2.9%), Vietnam (2.9%), Ukraine (2.7%). Others: 43 smaller consumers listed by USGS.

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8. Pattern of Asbestos Production and Use â€“ L. Kazan-Allen

3. Geographical Shift in Asbestos Markets Bar graphs comparing global and regional use in 2000 and 2012 show a trebling of the number of national asbestos bans, a 53% fall in the number of asbestos-consuming countries and the growing importance of Asian asbestos markets.

Diagram 7. National asbestos bans and regional consumption. Source: USGS data. The next two maps, comparing levels of national asbestos consumption and the spread of asbestos bans in 2000 and 2012, are informative.

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Asbestos consumption and national bans – 2000.

Asbestos consumption and national bans – 2012.

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8. Pattern of Asbestos Production and Use â€“ L. Kazan-Allen

Whereas the earlier image shows just a handful of countries with bans (green), the majority of which were in Europe, the later graphic reveals that asbestos has been banned on six continents3 . The timing of asbestos bans is shown in the table below. Period

Years

1982-1991 1992-2001 2001-2012

10 10 11

National adopted 8 15 31

bans

NNew bans per year 0.8 1.5 2.8

In the last ten years, more national bans have been introduced than in the preceding two decades. While it is disappointing that annual demand for asbestos remains at around two million tonnes/year, the fact that markets have disappeared in so many countries is indicative of a significant change in the publicâ€™s perception of the asbestos hazard. Asbestos, regarded in the mid-20th century as a magic mineral, is now acknowledged to be the worldâ€™s worst industrial toxin. An asbestos-free future is possible. Received 5 February 2013

3 While, as of 2013, there are no asbestos bans in 9 of the 10 countries sharing mainland continental North America, Honduras banned asbestos in 2004.

Chapter 9

Asbestos and Canada by Patrick MARTIN I feel very honoured to be with you today. I think it’s very fitting that the organizers of the event have invited a Canadian Member of Parliament to address you today. Let me begin by saying that I love my country, but I hang my head in shame that my country, for one hundred and thirty years, has been one of the largest producers and exporters of asbestos in the world. I say without any hesitation that we have been exporting a “Made in Canada” epidemic around the world. We have been exporting human misery and I say without hesitation, Canada’s position on asbestos is morally and ethically reprehensible.

1. Asbestos : Canada’s sin. Not only has Canada been exporting 1.7 million tons of asbestos per year in our peak years, we have been the number one cheerleader for asbestos in the world. As our colleague Barry Castleman has stated, Canada used to send teams of Department of Justice lawyers around the world like globetrotting propagandists for the asbestos cartel. I used to work in the asbestos mines. I have many friends who died from asbestos-related diseases and as a Canadian Member of Parliament, it broke my heart to see our tax dollars being used to be these unabashed cheerleaders for the asbestos industry which I know to be an evil and corrupt industry. I don’t know of any other Canadian commodity that enjoyed the level of support that the asbestos industry has. Not only did my country make a fortune by exporting and trading asbestos, my country spent a fortune subsidizing that industry and spent millions of dollars internationally blocking other countries’ courageous attempts to curb its uses. France is a good example: in 1999, the country of France wanted to ban asbestos in all of its – 125 –

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forms. The Government of Canada went to the World Trade Organization to file complaints and sanctions against France, for having the temerity to take the steps necessary to defend their own people for the scourges of asbestos. Barry Castleman was one of the consultants for the European Community in that proceeding. Thankfully, the good people of France won that case and the Canadian government lost and France did the right thing for its people. Let me say, it has been a terrible struggle in Canada to try and end this industry. But in recent years, with your pressure internationally, and our pressure domestically, we have been making real progress. A year ago, the last remaining asbestos mine in Quebec was in bankruptcy protection, then was dormant, and was finally shutdown. But then, the government of Quebec offered yet another handout, I call it “Corporate welfare for corporate serial killers”. They offered 58 million dollars to reopen the mine and our hearts sank, because we were so close. All of the other asbestos mines in the country, including the one I worked in, closed due to normal market forces. Nobody was buying the stuff anymore. But the asbestos mines in Quebec were kept open decade after decade with tons and tons of stimulation money, taxpayers money, and subsidies. Our hearts sank when we realized that the government was going to bail out this entire industry once again and keep the mines open for another forty years, as I believe Kathleen Ruff pointed out at 250 000 tons per year.

2. Hope and justice There is a saying that it is always the darkest just before the dawn and I stand before you here today to announce that we had some good news on the asbestos front in my country. You heard some of the details from other speakers, but I can tell you the most significant move is that the newly elected government in the province of Quebec has taken back that 58 million dollars handout and virtually, with that action a vote of non-confidence in the industry, sounded the death knell for that industry. Another piece of good news is that the Chrysotile Institute, the government funded lobby group that promoted asbestos around the world had their funding cut off. Their doors are closed. They are out of business. They can tell no more lies. They can do no more harm and they are out of the picture all together. This is a dream for those of us in the industry who have been trying to stop them. The third thing that is very positive is the federal government of Canada, not my party, I am an opposition member, but the ruling party has offered 50 million dollars for economic diversification to the asbestos mining region of Quebec to help them transition out of this industry and help the affected

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workers transition into some other line of work that, I hope, won’t be killing them and others in the process. So these three measures, I believe, mark the death rattle of the asbestos industry in my country. I believe that for the first time in 130 years, Canada is oﬃcially out of the asbestos industry and I’m glad we were able to announce such a thing at a gathering like this. More to the theme of what I was asked to speak about, we are not finished yet. We are using this as a starting point because now, we need to push the government into meaningful actions, real actions in terms of total ban on the production and export of asbestos in Canada. Secondly, we are going to push the government to invest heavily in the diagnostics, research and treatment of asbestos-related diseases on the logic that if Canada was a world leader in the production, exporting and sale of asbestos, we should be the center of excellence, the “global world leader” in how to ensure "state of the art " treatment of the industrial related diseases. The third thing we are pushing for now, is a complete registry of buildings where asbestos is present and funding for private home owners, municipalities and public buildings for the remediation of asbestos from those buildings. We have contaminated most of our country with asbestos and we would like to be able to announce that, as some countries in Europe nearly are, someday Canada will be asbestos-free. The fourth thing and, I want to thank Doctor Guadalupe Aguilar for mentioning this, we want Canada to contribute to an international global fund for compensation of victims and for the remediation of asbestos aﬀected buildings and properties in those countries where we had played a role in that contamination. Those four things are our new action plan. I can tell you that we will not stand down and we will not stop until we shame the face of greed and force the government of Canada to comply with those reasonable requests. For my last comment, I would like to speak directly to the victims and families of the victims who are present here today. As a representative of the government of Canada, if it was Canadian asbestos that killed your husbands, that killed your family members, I apologize from the bottom of my heart. I am sorry on behalf of the government of Canada for the harm our Canadian asbestos has done. I see the asbestos widows here before us, bravely continuing this fight. The role that Canada had played is unforgivable. But I can tell you that you have allies and friends in our country who will continue to fight on behalf of victims everywhere. Thank you. Received 26 November 2013

Chapter 10

Defeating government and asbestos industry propaganda in Quebec and Canada by Kathleen RUFF Over the past century, Canada has been one of the biggest exporters of asbestos in the world. In addition to exporting a deadly product, Canada also exported deadly misinformation. Canada has been at the heart of the global asbestos propaganda machine.

1. Canadian asbestos propaganda When Canada’s longtime clients in Europe and the US started to ban or virtually stop using asbestos, in the face of increasing numbers of asbestosrelated deaths, Canada decided it needed to find new markets to sell its asbestos. In 1984, the Canadian government, the Quebec government, the asbestos industry and the asbestos workers unions created the Asbestos Institute in Montreal with the specific aim of marketing asbestos to developing countries. Modeled on the Tobacco Institute, the purpose was for the Asbestos Institute to appear to be a bona fide scientific institute and to disseminate research, financed by the asbestos industry, that claimed that chrysotile asbestos could be used, and was being used, under “safe, controlled conditions” and posed no threat to health. Chrysotile asbestos represents 95% of all the asbestos that has been sold over the past century and for about 20 years, is the only form of asbestos still traded. Over the past 25 years, the Asbestos Institute received $50 million from the Canadian and Quebec governments and the asbestos industry to aggres– 129 –

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10. Asbestos propaganda in Quebec and Canada – K. Ruﬀ

sively market the message that chrysotile asbestos is the good asbestos and can be safely used. In 2003, it changed its name to the Chrysotile Institute in order to better push its propaganda that other asbestos is bad, but chrysotile is good. In 1997, the global asbestos lobby group - called the Asbestos International Association, which includes asbestos lobbyists from Russia, India, Brazil, Bolivia, Canada, China, Colombia, Indonesia, Iran, Kazakhstan, Mexico, Senegal, Sri Lanka, the United Arab Emirates, the United States, and Vietnam – moved from the UK to Quebec to work alongside the Chrysotile Institute. The Canadian government applauded this move, saying it confirmed Canada’s world leadership in promoting the “safe use” of chrysotile asbestos. In 2003, the Asbestos International Association changed its name to the International Chrysotile Association (ICA). It is still based in Quebec and lobbies around the world to promote the interests of the asbestos industry. In 2011, for example, the ICA hired a powerful public relations company, APCO Worldwide, to lobby in Malaysia to block an initiative to ban asbestos. Literature published by the Chrysotile Institute, bearing the oﬃcial emblems of the Quebec and Canadian governments, said a 99.8% success rate for “safe use” of asbestos had been achieved. Documentation was provided to the Quebec and Canadian governments showing workers in India handling Quebec asbestos with their bare hands. The governments ignored the evidence. They also ignored the findings of a study carried out by Quebec government health oﬃcials, which showed a 0% success rate for “safe use” of asbestos in Quebec itself. While a failure in practice, this “safe use” marketing strategy was a very successful propaganda tactic, both inside Canada and around the world. In Canada, up until four years ago, all the political parties in the Canadian House of Commons and in the Quebec National Assembly supported the Chrysotile Institute and its “safe use” of asbestos propaganda. On the international level, instead of decreasing to zero, as it should have, the global sale of asbestos has stayed around 2 million tons a year for the past 20 years, with sales in Asia increasing dramatically from 14% of global sales in the 1920–1970 period to 64% in the period from 2001–2007.

2. The defeat of asbestos industry In the past four years, however, the asbestos industry has seen the catastrophic defeat of its propaganda, its public support and its political power in Quebec and across Canada.

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This happened because public health experts, scientists, activists and asbestos victims publicly and repeatedly exposed the deadly lies of the asbestos industry and challenged political leaders and institutions to end their collusion with this shameful deception. As Amnesty International says, to defeat injustice, it is necessary to speak truth to power and to hold those with power accountable. In 2006, Canada sabotaged the U.N. Rotterdam Convention by refusing to allow chrysotile asbestos to be put on the Convention’s list of hazardous substances, thus enabling continuing sale of asbestos without even minimum safety warnings. In 2008, over 150 leading scientists and medical experts, including more than a dozen in Quebec, signed a World Call of Conscience to Prime Minister Harper to Stop Obstructing the Rotterdam Convention. For the first time, Canada faced a major, public challenge from the world scientific community for denying scientific evidence and for blocking global progress to protect health. In January 2009, two Quebec medical experts, Dr. Fernand Turcotte and Dr. Pierre Auger, supported by others, sent a letter to Prime Minister Harper, asking that the Canadian government cease funding the Chrysotile Institute. They told PM Harper: “It is our view as Canadian experts in epidemiology and occupational medicine and as public health advocates that the Chrysotile Institute is endangering public health by disseminating misleading and untruthful information about chrysotile asbestos, especially in the world’s emerging economies . . . The Institute’s misleading propaganda is financed, in large part, by the Canadian federal government. It is a slur on the reputation of the scientific community and people of Canada for the government to be funding such perversion of scientific information. But, this is a far more serious matter than a slur on our country’s scientific integrity. People’s lives continue to be put at risk if they put their trust in the Chrysotile Institute’s information.” By September 2009, the group of Quebec medical experts challenging the Quebec government’s asbestos policy had grown to fifteen. They issued a statement, that was published in Quebec’s largest newspaper, entitled «Cessons les mensonges» (Let us stop the lies). The statement exposed the deceptive propaganda being disseminated by the asbestos industry regarding “safe use” of asbestos and stated «Cette infamie n’est plus défendable.» (This infamous conduct is no longer defensible.) The fifteen doctors and health experts called for an end of the Quebec asbestos industry and funds to be provided to the mining communities to diversify their economy. In January 2010, a hundred scientists from around the world filed a complaint with the Quebec College of Physicians, stating that Quebec’s Minister of Health, Dr Yves Bolduc, a medical doctor, was violating the College’s Medical Code of Ethics by promoting medical misinformation regarding asbestos that would result in harm to health.

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In February 2010, an Open Letter was sent to Normand Paulin, Director of Occupational Safety for Quebec’s Occupational Health & Safety Commission. Paulin and the Commission were the only remaining health agency in Quebec that were continuing to support the Quebec government’s mining and exporting asbestos. The letter challenged Paulin, saying that he was violating his professional Code of Ethics by supporting the misinformation that Quebec’s asbestos was being “safely” used overseas. This letter was published in the International Journal of Occupational & Environmental Health (IJOEH). In April 2010, more than one hundred scientists from 28 countries, sent a letter to Premier Jean Charest of Quebec, pointing out the deadly deception that his government was practicing and calling on Quebec to stop the mining, use and export of asbestos. This letter was published in the IJOEH and received major media coverage. In November 2010, a full page ad was published in two Canadian newspapers with the heading “Stephen Harper’s Killer Legacy”, calling on Prime Minister Harper to stop exporting asbestos death. The ad was paid for and endorsed by asbestos victims organisations, ban asbestos groups, trade unions, health organisations, scientists and leading figures from around the world. In December 2010, the Solidarity delegation, with asbestos victims, a trade unionist and activists from Japan, South Korea, India and Indonesia, came to Canada to bring their personal, human message that Canada stop exporting asbestos. They held press conferences in the House of Commons, in the Quebec National Assembly, and in Montreal. They held public meetings in Montreal and Quebec City. They had a meeting with the Quebec Minister of Economic Development and top government oﬃcials; they met with the opposition party that is now the government of Quebec; they met with the leader of the political party, Québec Solidaire, who announced their presence to the members of the National Assembly as he presented a Bill to ban asbestos. The voices of scientists, activists and asbestos victims, ceaselessly challenging the asbestos industry and those who collude with its deadly deception, gained a huge amount of media coverage in Quebec and across Canada. When the asbestos industry responded, they just made things worse for themselves. They could not answer the powerful evidence that we put forward, so they resorted to slurs. They called the Quebec scientists who had spoken up against asbestos “a little gang of Talibans”. The Chrysotile Institute sent out a media release headed “L’institut du chrysotile considère loufoque la position des anti-amiante” (The Chrysotile Institute considers the position of those who oppose asbestos to be wacko). They attacked scientists, activists and victims as all being corrupt and being paid to oppose

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asbestos. They lost the battle of public opinion. Editorial after editorial was published in Quebec and across Canada, criticizing the deception of the asbestos industry and calling for an end to the mining and export of asbestos. In July 2012, the Joint Policy Committee of the Societies of Epidemiology, representing national and international epidemiology societies, published a Position Statement calling for a global ban on asbestos1 . The Statement has been endorsed by numerous scientific organisations and scientific experts, as well as by ban asbestos and victims’ organisations around the world. The Statement specifically condemned the efforts of the asbestos industry to undermine public health policy by denying the overwhelming scientific evidence and promoting asbestos use in developing countries. The voices of scientific authorities, activists and victims, challenging the asbestos industry and its collaborators, have had great political impact. All of the national political parties in the Canadian House of Commons, except for the ruling Conservative Party, have now called for an end to the mining, use and export of asbestos. In Quebec, only the defeated Liberal Party of Quebec still supports the asbestos industry. I want to pay particular tribute to the New Democratic Party of Canada and Québec Solidaire for their courage and integrity in leading the way in calling for asbestos to be banned. The last two asbestos mines in Quebec have been closed down for a year and more because of a variety of problems - a landslide closing one mine (the LAC mine at Thetford Mines), depletion of the asbestos deposit at another (the Jeffrey mine at Asbestos), and bankruptcy and lack of financing at both. The owner of the Jeffrey mine, Bernard Coulombe, stated on Tuesday that the new Quebec government has cancelled the $58 million loan he obtained from the previous government and that the Jeffrey mine will not re-open. Note that the Canadian government of Prime Minister Harper has not changed its position of supporting the “safe use” of asbestos propaganda, but has announced that Canada will no longer block the Rotterdam Convention and will give $50 million to help the asbestos mining area diversify its economy. The Canadian government attacked the Quebec government for killing the asbestos industry and said it would now be “illogical” for Canada to block the listing of chrysotile asbestos, as this industry would no longer exist. If the Jeffrey mine had gone ahead with the $58 million loan from the previous Quebec government, it would have exported 250,000 tons of asbestos a year for the next 20 to 50 years, making Canada the 2nd biggest exporter of asbestos in the world and making Quebec once again the world leader of “safe use” of asbestos propaganda. More remains to be done. We need legislation to be passed banning the mining, use and export of asbestos. 1

Full Statement (in English, French, Spanish, Portuguese, Russian, Arabic, Chinese) and documents available online: http://www.jpc-se.org/

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We need a registry in Quebec and across Canada, showing where asbestos has been placed in buildings. We need assistance and support for asbestos victims and their families. Environmentalists in Quebec have already begun this important work at the grass roots level in Quebec, which is wonderful. The asbestos industry in Canada has suﬀered enormous blows. Thanks to collaboration between scientists, activists and victims, in Quebec, across Canada and around the world, we have forced an end of Canada’s shameful export of asbestos and asbestos lies. Received 15 April 2013 Some references accessible online 1) International Joint Policy Committee of the Societies of Epidemiology, Position statement on Asbestos. Available in English, French, Portuguese and (summary) in Spanish, Portuguese, Russian, Arabic, Chinese : http://www.jpc-se.org/ 2) La mortalité liée à l’amiante : une exportation canadienne, Editorial du Journal de l’Association des Médecins du Canada (JAMC), 21 octobre 2008: http://www.andeva.fr/IMG/pdf/CMAJ-Oct08.pdf 3) Letter to Minister Bolduc, 9 June 2010 : http://www.andeva.fr/IMG/pdf/Lettre Bolduc Ram9juin2010.pdf 4) Press release of the Canadian Cancer Society, 29 June 2010: http://www.andeva.fr/IMG/pdf/SocCanadaCancer29juin2010.pdf 5) Site RightOnCanada: http://www.rightoncanada.ca/ 6) Rideau Institute. Exporting Harm : How Canada Markets Asbestos to the Developing World, Quand le Canada exporte le mal La vente de l’amiante dans les pays en développement, by K. Ruﬀ, in English and French: www.rideauinstitute.ca/wp-content/uploads/2011/01/exportingharmweb.pdf www.rideauinstitute.ca/wp-content/uploads/2011/01/exportingharmFRweb.pdf

Chapter 11

Asbestos : Still legal and lethal in the USA by Linda REINSTEIN I’m Linda Reinstein, Co-Founder and President of the Asbestos Disease Awareness Organization (ADAO), an independent, non-profit dedicated to eliminating mesothelioma and other asbestos-caused diseases. After a personal note and a quick review of the history of asbestos trade and use in the U.S., I want to share the latest facts and evidence about asbestos use in the United States, because, unbeknownst to many, asbestos remains legal and lethal in the U.S.

1. My personal history with asbestos Storytelling is powerful for all of us. I want to share a bit about my personal story, not for sympathy, but so you can better understand the motivation behind ADAO and our work. In 2003, after enduring 9 months of symptoms and multiple visits to doctors, my husband, Alan, was diagnosed with deadly mesothelioma. At the time, I had never heard of the disease; I, like most Americans, thought that asbestos had long been banned in the United States. In 2003, fueled by my intense grief and anger about Alan’s mesothelioma diagnosis, I turned my anger into action by co-founding ADAO. As a result of asbestos exposure, Alan died three years later with our then 13 yearold-daughter and me by his side. Almost a decade after Alan’s diagnosis, our ADAO core principles have remained constant – for us, it is all about education, advocacy, and community. – 135 –

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Alan Reinstein – May 2005 / May 2006 Our core principles are simple, but what is simple isn’t always easy. In the USA, more than 10,000 Americans die each year from preventable asbestos-caused diseases, of those an estimated 5,000 Americans die from asbestos-caused lung cancers, 2,500 from mesothelioma, and the balance for other cancers and respiratory diseases.

2. A brief history of asbestos in the US Until the 1970s the United States were by far the biggest asbestos consumers throughout the world. Indeed until the fifties the US imported most of Canada’s production and used more than half of the asbestos produced in the world. Consumption then remained extremely high, peaking in 1973 with over 800,000 metric tons of asbestos used that year, before declining sharply during the 1980s. “History is a great teacher to those who listen.” The past decades have been dismal for public health. In the 1970s, several significant pieces of legislation regarding public health were approved. However, since then, not many steps have been taken towards an asbestos ban in the United States. In 1989, the United States Environmental Protection Agency issued a final rule banning most asbestos-containing products. However, in 1991, this regulation was overturned by the Fifth Circuit Court of Appeals in New

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Orleans1 . Currently, the only four banned asbestos-containing products are: flooring felt, rollboard, and corrugated commercial, or specialty paper2 . TABLE : USA Asbestos timeline (1970 – 2010) Years 1970

Years 1980 Years 1990

Years 2000

• 1970 Clean Air Act; Congress creates NIOSH with the Occupational Safety and Health Act • 1973 CAA Asbestos NESHAP • 1976 Toxic Substances Control Act (TSCA) • 1977 International Agency for Research on Cancer (CIRC / IARC) declares asbestos a human carcinogen • 1989 EPA issued a final rule banning most asbestos-containing products • 1991 EPA regulation was overturned by the Fifth Circuit Court of Appeals in New Orleans • 2009 US Surgeon General issues asbestos statement

The damage caused by asbestos use in the U.S. is immeasurable. On September 11, 2001, nearly 3,000 innocent lives were lost, but the death toll continues. When the towers collapsed, building debris blanketed Lower Manhattan, exposing thousands more to known hazards in the air, including over 2,000 tons of asbestos. Today, area residents and emergency service workers continue to die of cancer due to 9/11 exposure.

3. Asbestos exposures today Don’t be fooled – consumer, environmental, and occupational exposure continues in the United States. Just two months ago, the United States Geological Survey (USGS) reported that U.S. consumption of asbestos increased 13% in 2011. The USGS reported that 140 metric tons of chrysotile, imported to the U.S. in 2011, were placed in stocks for future use. In 2011, asbestos consumption in the United States was estimated to be 1

The judgement : «Corrosion Proof Fittings, et al., v. The Environmental Protection Agency», is available on: openjurist.org/947/f2d/1201/corrosion-proof-fittings-v-environmental-protection-agency See also EPA’s website http://www.epa.gov and the next article in this volume. 2 The EPA site presents a detailed information and clarification: http://www.epa.gov/asbestos/ban.html

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1,180 metric tons. Roofing products were estimated to account for about 60% of U.S. consumption; the chloralkali industry, about 35%. The last action that the federal government has taken to protect the American people from asbestos was issuing this 2009 statement from the Surgeon General about the dangers of asbestos.

Asbestos consumption in United States, 2007â€“2011 Without a ban, consumer, environmental, and occupational exposure continues. Following are some examples of new evidence of exposure in the USA. The ADAO 2007 product testing study confirmed that asbestos can be found in American consumer products, including toys for children, but no action was taken by our government. In July 2012, a colleague mailed me the mitten pictured here which is used in laboratories. Tests proved the mitten was 90% chrysotile. Exposure continues. Environmental disasters, natural and man-made, also expose Americans to asbestos. First responders and residents were endangered when the Joplin, Missouri tornado ravaged the city. Afterwards, it was reported that 2,600 tons of asbestos debris was removed. The WR Grace Vermiculite mine in Libby, Montana has been expensive in dollars and lives. Although the WR Grace Mine closed in 1990, nearly 2/3 of the town has suďŹ€ered from sickness or died, and the government has spent $ 450 million dollars to clean up this toxic dump while exposure continues.

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Exposures to asbestos :

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Consumer/ Environmental/ Occupational

Environmental exposures â€“ natural and man-made disasters

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Consumers exposures â€“ Mitten, glue, etc.

Occupational exposure: WTC and asbestos-cement pipe under the Capitol The Lancet reported on a federally-funded, comprehensive cancer study of New York City Firefighters after 9/11, which showed that those working at the site of the attacks had ten percent more cancers than the general public and 19 percent more cancers than firemen not involved. In a tragic example

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of worker rights violations, Washington, D.C. employees were exposed to and sickened by asbestos while maintaining the tunnels under the nation’s capitol. Underground, the asbestos dust was so thick that the supervisor was able to write his name on the top of a pipe. In May 2010, the U.S. President’s Cancer Panel released a landmark 200page report entitled “Reducing Environmental Cancer Risk: What We Can Do Now”. The panel reported that “Construction workers were found to be 11 times more likely to develop mesothelioma, due to asbestos exposures at the site.” Environmental and occupational cancers are on agency radars now more than ever before.

4. Conclusions and hopes The past will not be our future. Because we know about the dangers of asbestos, we have the opportunity and the social responsibility to protect the public from preventable diseases. This is not only about corporate liability, but human, environmental, and civil rights violations. “Knowledge is Power” The facts are irrefutable: Asbestos is a known human carcinogen and there is no safe level of exposure. There are only two ways to stop deadly asbestos- caused diseases – prevention and a cure. In September 2012, the U.S. Department of Labor’s Occupational Safety and Health Administration cited seven construction companies with 45 serious violations for exposing workers to asbestos hazards on construction work sites. Proposed penalties total $148,000. The propaganda and rhetoric make protecting public health a disastrous challenge. So in the USA, we are taking our work to the streets, the digital streets, as 90% of people all over the world live in locations with access to a mobile network. ADAO uses graphics to share facts and visualize data. Mes-o-the-li-o-ma: can’t pronounce it – can’t cure it. To help prevent consumer, environmental, and occupational exposure, Barbara McQueen, the widow of legendary actor Steve McQueen, has joined ADAO’s eﬀorts. She has attended our annual conference, traveled with us to meet with legislators in Washington, DC, and even included an educational page about ADAO’s work in her new book, The Last Mile...Revisited, a tribute to her late husband. ADAO’s top priority is education. Preventing exposure is especially difficult because of asbestos’ extremely small fiber size, public misconception about safe use, and the long latency period for disease to present. You can see how 20,000 asbestos fibers compare to the size of rice and human hair, and easily fit under President Lincoln’s nose on the penny pictured next page.

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With pain, comes action. We know of the devastating eﬀects of asbestos, and it is painful to watch legislators move so slowly to end one of the largest man-made disasters. We must prevent consumer, environmental, and occupational exposure. As the International Social Security Association reported, the “cost-benefit potential for investments in prevention may be as strong as 1:2.2, and even higher in some cases.” Partnering for Prevention is imperative and strengthening. Our online “Share Your Story” feature is expanding. Patients and families around the world willingly share their unique stories about diagnosis, treatment and, for most, death. This process is cathartic, strengthens our community bonds, and undeniably shapes policy. In 2013, we are returning to Washington, D.C. for our 9th Annual International Asbestos Awareness Conference: “The Asbestos Crisis: New Trends in Prevention and Treatment.” As I tell the US Congress: "One life lost to asbestos disease is tragic; hundreds of thousands of lives is unconscionable." Change in asbestos regulation is so painfully slow in the United States. But, as Lao-Tzu said, "A journey of a thousand miles begins with a single step." As I look around me today, I know that I am not alone on this journey. It is inspiring and invigorating that people all over the world share in our struggle. Together, change is possible. Received 27 March 2013

ยง4. Conclusions and hopes

US Surgeon General issues asbestos statement 2009

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Chapter 12

October 18, 1991: A Bloody Anniversary by Laurie KAZAN-ALLEN October 18, 1991 is a landmark date in the history of the world’s worst industrial killer: asbestos. It was on October 18, 1991 that vested interests succeeded in overturning the U.S. Asbestos Ban and Phase-out Rule (ABPR), drafted by the Environmental Protection Agency (EPA) under section 6 of the Toxic Substances Control Act. The ABPR, which was promulgated on July 26, 1989 and became eﬀective on August 25, 1989, introduced prohibitions on the import, processing, manufacture and distribution of asbestos-containing products in three stages over ten years1 .

1. “Asbestos Ban and Phase-out Rule”, United States, 1989 These actions were intended to “reduce the unreasonable risks presented to human health by exposure to asbestos” and were the result of ten years of discussions, research, public meetings, consultations, hearings and crossexaminations by the EPA. In the vacuum left by the demise of the ABPR, a further 300,000 tonnes of asbestos fiber was used, most sourced from Canadian mines2 , and vast amounts of asbestos-containing construction products, friction materials and assorted other asbestos-containing items were incorporated into the U.S. infrastructure. The propaganda value of the ban’s 1

Federal Register. Part III Environmental Protection Agency 40 CFR Part 763. July 12, 1989. http://www.epa.gov/asbestos/pubs/frl-3476-2.pdf 2 According to data from the United States Geological Survey (U.S.G.S.), between 1990 and 2010, a total of 307,765 tonnes of asbestos were imported to the U.S. Based on the available data, as much as 99.5% of annual U.S. asbestos purchases were from Canada.

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reversal has been ruthlessly exploited by asbestos lobbyists who are eager to tell anyone who will listen that the use of asbestos remains legal in the United States. In a 2011 issue of the newsletter published by the Chrysotile Institute3 – the mouthpiece of Canada’s asbestos industry – an article headlined “The Americas are far away from having banned Chrysotile,” states: “Canada has not banned it (chrysotile asbestos), nor has the United States. The following is a list of 28 products containing chrysotile whose use is approved in the United States.” 4 The legal decision which vacated the ABPR was handed down by a threeman panel of the U.S. Court of Appeals for the Fifth Circuit. While the circuit judges did not dispute that “asbestos is a toxic material, and occupational exposure to asbestos dust can result in mesothelioma, asbestosis, and lung cancer,” 5 they were troubled by procedural matters such as “the manner in which the EPA conducted some of its analysis” and the “EPA’s explicit failure to consider the toxicity of likely substitutes.” In paragraph 143 of the judgment, the New Orleans Court granted the petition for review, vacated the EPA’s proposed regulation, and remanded the matter to the EPA “for further proceedings in light of this opinion.” EPA oﬃcials were anxious to pursue options to reinstate the ban. On November 15, 1991, the EPA petitioned the Fifth Circuit Court of Appeals for a rehearing and asked “that the Court withdraw its October 18, 1991 opinion, order further briefing on certain issues, and issue a revised opinion.” 6 The rehearing was denied on November 27, 1991. American asbestos expert Dr. Barry Castleman, who had attended the 1986 EPA asbestos hearings, recalled what happened next: “EPA wanted to appeal this ruling to the Supreme Court and asked the U.S. Department of Justice to take on the appeal. After the Justice Department refused, EPA asked Justice to reconsider and was turned down again. EPA had to settle for issuing a statement criticizing the court for ‘significant legal errors’ in interpreting the law and substituting its 3 The Chrysotile Institute, formerly known as the Asbestos Institute, was founded in 1984 as a joint initiative of the Canadian and Quebec Governments and the Canadian asbestos industry. 4 Chrysotile Institute Newsletter. The Americas are far away from having banned Chrysotile. November 2010. http://www.chrysotile.com/data/newsletter/Bulletin V9 No2-Ang.pdf 5 Corrosion Proof Fittings, et al., Petitioners, v. The Environmental Protection Agency and William K. Reilly, Administrator, Respondents. No. 89-4596. http://openjurist.org/947/f2d/1201/corrosion-proof-fittings-v-environmentalprotection-agency See also: http://www.epa.gov/asbestos/pubs/ban.html 6 Talking Points on EPA’s Response to the Court in: Corrosion Proof Fittings v. Environmental Protection Agency. EPA archive document file “Talking Points”. Online: http://www.banasbestosecretariat.org/epa-file-talking-points.pdf

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judgment for that of EPA in balancing the costs and benefits of asbestos products banned under the rule.” 7 Despite several attempts by members of Congress to ban asbestos through legislative means,8 no ban on the use of asbestos has been adopted by the U.S. authorities. Old Documents, New Perspective In an attempt to better understand the background to the overturn of the Asbestos Ban and Phase-out Rule, a Freedom of Information application was made to the EPA in Spring 2011. Documents released pursuant to that request combined with archival material and files previously obtained from Canadian sources through the Access to Information Act reveal much about the political, economic and social context within which the opposition to the regulations was mounted. Judging from the content of these documents, it is clear that the actions of Canadian Ministers, cabinet members and politicans, including the Canadian Prime Minister, in conjunction with the efforts of the Quebec Premier, Quebec Ministers, local politicians and industry stakeholders in Canada were pivotal in the demise of the ABPR. 9 Industry Opposition to the Ban Proposals Almost as soon as news of the proposed asbestos ban began circulating (October 1979)10 , the asbestos industry began to mobilize its forces. Within weeks, the Canadian Government sent a delegation of officials, scientists and doctors to the U.S. capital to “protest at the unnecessarily stringent rules concerning asbestos and its use” proposed by the EPA. The delegation had meetings in December 1979 with staff from the Occupational Safety and Health Administration, the Consumer Product Safety Commission and the EPA to raise Canada’s concerns.11 Documents circulated at an August 1980 meeting of the Asbestos International Association (AIA) highlighted the threat posed by the EPA’s rule in great detail.12 In the 28 page “AIA 7 Castleman B. Asbestos is Not Banned in North America. European Journal of Oncology 2006; 11: 85-88. 8 Failed Congressional attempts to ban asbestos include the: Ban Asbestos in America Act of 2003, Ban Asbestos in America Act of 2007 and Bruce Vento Ban Asbestos and Prevent Mesothelioma Act of 2008. 9 EPA documents cited in this paper can be viewed on the website of the International Ban Asbestos Secretariat: www.ibasecretariat.org 10 On October 17, 1979, the EPA lodged an Advance Notice of Proposed Rulemaking in the Federal Register (44 FR 60061) stating its intent to explore means to “reduce the risk to human health posed by exposure to asbestos.” On July 30, 1982, EPA issued a reporting rule (47 FR 33207, 40 CFR 763.60) regarding its collection of “information on industrial and commercial uses of asbestos.” 11 Asbestos International Association. Notes for Associations. August 1980 (p.18-19). 12 The Asbestos International Association, one of a number of industry-backed lobbying groups engaged in disseminating industry propaganda, was formed in 1974.

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notes” distributed to delegates, four entire pages were occupied with the news from the U.S.: “Certain regulatory agencies in the U.S., notably the Occupational Safety and Health Administration (OSHA), the Environmental Protection Agency (EPA) and the Consumer Product Safety Commission (CPSC) have shown by their combined actions that they are aiming for legislation concerning asbestos which would effectively stop its use [. . . ] AIA/NA [Asbestos Information Association/North America] has not been able to persuade government officials to adopt a practical and realistic approach to the problem and this difficulty has been aggravated by the attitude of organised labour and of public interest groups. Thus AIA/NA decided to retain a law firm to advise them on: a) Rule-making processes. b) Possible future legislation. The Advance Notices of Proposed Rulemaking (ANPR) which were issued by EPA and CPSC in 1979 were strongly argued against by AIA/NA. Members may be interested to know that the law firm retained by the AIA/NA had been earlier retained by the U.S. Chemical Industry who were contesting an OSHA-imposed workplace standard for benzene ten times more stringent than was considered necessary. This case has just been won by the Chemical Industry and it is now up to OSHA to prove that the hitherto accepted benzene standard is harmful and to prove at what level any new OSHA standard should be set. This decision is bound to have a far-reaching impact on all U.S. Government programmes to control carcinogens and, for example, will have a bearing on OSHA’s stated intention of reducing the present 2 fibre/ml workplace standard for asbestos . . . The EPA has announced that a limitation or ban on non-essential commercial and industrial uses of asbestos would be considered but such action depended on showing an unreasonable risk with asbestos, the reliability of the substitute and the economic consequences of banning. EPA recognises that in order to minimise the impact on industry the timing of any effective dates could range from 1985 to 1995 and possibly later, resulting from any judicial appeal. The time-table for expected EPA legislatory initiatives following their ANPR is approximately13 : ANPR was published Proposed Rule Public Hearings Final Rule 13

October December (?) (?)

Asbestos Information Association News (41). 31 July 1980: p25-28.

1979 1980 (?) 1981 1982

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2. Implications of U.S. Ban for Canada Canadian politicians and asbestos stakeholders were in no doubt about the threat posed by the EPA’s proposals. The U.S. was, for much of the 20th century, the largest market for Canadian asbestos; from 1900 to 2003, 98% of all U.S asbestos imports were from Canadian mines.14 Even though U.S. usage had fallen significantly as a result of “the asbestos health issue,” by 1985, U.S. customers still purchased 16% of all Canadian chrysotile asbestos exports, generating Can$72 million for the Canadian economy15 . As well as the hit Canadian sales would take, should the EPA regulations remain in place, the adverse impact on global sales that an American ban would undoubtedly have could not be discounted. Indeed numerous representatives of the asbestos industry recognized this fact in presentations they made in July 1986 at the EPA Asbestos Ban and Phase-out Legislative Hearings: • According to Etienne van der Rest, Chairman of the Governing Council of the AIA and Chairman of Eternit Belgium: “If a decision of banning asbestos . . . is taken by USA, you can be assured that many countries will follow your example.” • Luis Cejudo Alva, General Director, of the Mexican Asbestos-Cement Producers Association agreed: “whatever course of action [is] taken by your great country, is of tremendous influence world-wide, and I would say, it affects even more its south of the border neighbour which is Mexico.” • Dr N. Anoruo Okere, Medical Consultant to the Nigerian Asbestos Association and Medical Director of Nigerite Limited, referred to the likely “bandwagon effect” in his comments: “There is no way a US government decision in this issue will not produce bandwagon effect. Many countries and in particular the developing ones look up to the US for leadership in areas of science and technology.” • Describing “the panic” in Brazil when news of the U.S. phase-out plan was released, Viviano Ferrantini, General Manager of the Brazilian Asbestos Association [Associacao Brasilerira do Amiante], reported that: “all the press in our country put off (sic) the news by saying – ‘USA finishes with asbestos’ and this put in a short time panic in the public and in all those involved with the fiber . . . I put this point on (sic) to show how every move USA makes – by a government agency or department – as 14 United States Geological Survey. Worldwide Asbestos Supply and Consumption Trends from 1900 to 2003. During this period, the U.S. imported 29.6 tonnes of chrysotile asbestos. U.S. asbestos consumption peaked in the 1970s. 15 Telegram U.S. Embassy in Ottawa to Secretary of State, Washington. EPA archive document files N1-054(1) and N1-054. May 7, 1986. Online: http://www.banasbestosecretariat.org/epa-file-n1-054(1).pdf; http://www.banasbestosecretariat.org/epa-file-n1-054.pdf

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The Canadians, the world’s most prolific suppliers of asbestos for most of the 20th century, were never going to sit on their hands and watch the EPA destroy the asbestos cash cow. That the EPA’s proposal was regarded as completely unacceptable was clear from the multifaceted and aggressive fightback orchestrated by politicans, civil servants and industry lobbyists in Ottawa and Quebec. Indeed, the language of a 1986 telegram from the American Embassy in Ottawa to the Secretary of State in Washington, D.C. and the American Consul in Montreal indicated that the Canadians were now on a war footing: “The GOC [Government of Canada] and the Canadian asbestos industry are marshaling (sic) forces and facts for a challenge to the proposed EPA ban on certain asbestos products and phasing-out of all asbestos use over a ten-year period. Canadian Minister of Mines Robert Layton announced on April 22 that the Federal Government, together with the Province of Quebec and the asbestos industry, will lend financial assistance totalling Can$ 2.5 million to the Montreal-based Asbestos Institute to promote Canada’s position on the controlled use of asbestos. The federal government and the Quebec provincial Government further agreed to consider reviewing this financial support for an additional three years [. . . ] The Asbestos Institute seized the opportunity to launch the opening round in its fight with the EPA. In a communiqué17 released April 22, the Institute charged that the ‘scientific community’ was ‘shocked’ by the EPA’s methodology in recommending a ban on asbestos in the U.S [. . . ] Canadian oﬃcials fear that the EPA ruling will aﬀect not only asbestos sales to the U.S., but the world-wide asbestos market, since third world nations frequently follow the U.S. lead in adopting regulatory standards18 .” 16

Comments by the Asbestos Information Association/North America and the Asbestos Institute at the EPA Asbestos Ban and Phase-out Legislative Hearings. Volume VI. EPA archive document file F1-020e. August 8, 1986. Online: Van der Rest (extract p.72-82): http://www.banasbestosecretariat.org/epa-file-f1-020e-p72-82.pdf Alva (p.140-148): http://www.banasbestosecretariat.org/epa-file-f1-020e-p140-148.pdf Okere (p.149-155): http://www.banasbestosecretariat.org/epa-file-f1-020e-p149-155.pdf Ferrantini (p.111-139): http://www.banasbestosecretariat.org/epa-file-f1-020e-p111114.pdf 17 Asbestos Institute Communiqué. EPA archive document file N1-054(2). April 22, 1986. Online: http://www.banasbestosecretariat.org/epa-file-n1-054(2).pdf 18 Memo to John Moore and Telegram from U.S. Embassy in Ottawa to Secretary of State etc. EPA archive document file N1-054 and N1-054(1).

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It seems for vested interests north of the border, the battle over asbestos was personal. Charles L. Elkins, Director of the Office of Toxic Substances, EPA from 1987 to 1990, recalled: “The Canadians felt that the ban was an anti-Canadian effort by the United States . . . We couldn’t convince them that the EPA staff doesn’t have the foggiest idea about foreign policy. This was strictly a publichealth issue.” 19 In a 1987 piece for the Toronto Star, Asbestos Institute spokesmen Gary Nash and Scott Houston speculated that the EPA’s asbestos ban proposals were “instruments for trade protectionism,” camouflaged as “health and environmental legislation.” 20 A Twenty-Four Year Old Scandal Revisited In early 1987, details of the retaliation devised by Canadian Ministers in collusion with members of the Canadian cabinet and asbestos lobbyists and implemented by civil servants, embassy personnel and industry hatchet men21 were uncovered by investigative reporters working for the Canadian Broadcasting Corporation, Southam News and the Ottawa Citizen.22 Many of the facts related in these stories came from documents obtained by Canadian researcher Ken Rubin through applications made under the Access to Information Act. Amongst the examples of political intrigue, commercial skullduggery and illicit proceedings which were exposed were the following: • Support for Canada’s “extensive campaign to try and force the EPA to not proceed [with the ban] . . . stretches from the Prime Minister’s office to Energy & Mines and External Affairs . . . ” The Canadian Embassy in Washington was closely monitoring developments, news of which was reported by telex to the offices of the Privy Council and the Prime Minister. • The attack on the U.S. ban enjoyed active support from high-level federal authorities including the Ministries of: Energy, Mines, and Resources, May 7, 1986. Online: http://www.banasbestosecretariat.org/epa-file-n1-054.pdf; http://www.banasbestosecretariat.org/epa-file-n1-054(1).pdf 19 Schneider A, Smith C. Asbestos – it’s the killer that won’t die. Seattle PostIntelligencer February 11, 2000. http://www.carollsmith.com/pdf/asbestosfailure.pdf 20 Nash G, Houston S. Proposed asbestos ban ‘draconian, unjustified.’ The Toronto Star. March 13, 1987. 21 Speaking about the challenge of whitewashing the tarnished image of asbestos, spin doctor George Worden of the infamous PR firm of Hill and Knowlton told Newsweek reporter Mary Hager: “The degree of difficulty is the highest I’ve ever been involved with.” [The Case for Asbestos. Newsweek. September 29, 1986.] Robert Gray, a Washington lobbyist, was hired by the Asbestos Institute as was the Washington law firm of Kirkland and Ellis. 22 Canadian Broadcasting Corporation. Asbestos Story – Special Report. [TV Broadcast] Canada; February 17, 1987.

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• •

•

12. October 18, 1991: A Bloody Anniversary – L. Kazan-Allen the Environment, Consumer and Corporate Affairs, Regional Economic Expansion; Departments of: Health and Welfare, External Affairs; and the Canadian International Development Agency. Canada’s three-pronged strategy was to do everything possible to “dispel the very negative image of asbestos,” 23 “challenge the credibility of the EPA,” and “isolate the U.S. on the international front.” A memo from Energy, Mines, and Resources (EMR) which stated that: “the objective is to challenge the EPA’s credibility” also highlighted the need for subterfuge: “the Government must not look to be leading. Clearly the initiative has to be seen as coming from industry asbestos leaders on this issue.” Acknowledging the need for Ottawa’s role in this plot to be buried, Alek Ignatow from EMR wrote in a March 1986 memo: “Clearly, the industry must be seen as leading on this issue.” The Asbestos Institute, the industry mouthpiece set up in Quebec just as the Canadian plot against the EPA was being hatched, recruited scientists, lawyers, Washington D.C. lobbyists and public relations spin doctors to progress the anti-ban campaign. The initial Can$2.5 million in the Asbestos Institute’s war chest “to defend and communicate Canada’s position on asbestos,” could swell by an additional Can$10 million in grants from the Canadian and Quebec Governments as well as yet more millions for other expenses, salaries, travel, research, publicity, legal services and consultancy fees. The House Commerce Oversight Subcommittee deemed as “illegal” meetings in Washington D.C. which took place at the behest of Canadian asbestos lobbyists with staff from the Office of Management and Budget, the body charged with overseeing regulatory decisions of agencies like the EPA to ensure their compliance with government guidelines. Assistance or Interference?

There was no doubt in the minds of Canadian civil servants that the level of interest Canada was taking in what was, after all, an internal U.S. aﬀair, was bordering on unacceptable. A trip planned by Canadian Minister Robert Layton to lobby the EPA Director was postponed on the advice of oﬃcials who felt it “could be perceived by the Washington media as interfering . . . and could be a PR disaster.” 24 Diplomatic niceties held little sway 23

In a statement to the EPA hearings, Roch Frechette, Mayor of the Quebec town of Asbestos, said: “asbestos is definitely not a public health issue . . . Our homes and playgrounds are built close to mining operations and the massive tailings piles, where waste from the mine and mill operations is discarded . . . the risks related to asbestos are no greater than a myriad of other risks that workers face every day in our modern day society.” EPA archive document file F1-020e (p.196-201). Online: http://www.banasbestosecretariat.org/epafile-f1-020e-p196-201.pdf 24 Ludlow R. Canada’s selective judgment on what’s an environmental hazard; Pushing asbestos sales while decrying acid rain. The Ottawa Citizen. April 4, 1987.

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with Quebeckers, however, who were in thrall to their much-loved asbestos industry, “a symbol of the social transformation of Quebec . . . [which] symbolizes the rupture from traditional Quebec and the start of a new era.” 25 On September 10, 1986, a delegation headed by Quebec’s Minister of Mines Raymond Savoie26 met with EPA officials Fitzhugh Green, Associate Administrator for International Activities, David Dull, Office of Toxic Substances, and Alan Carpien, Office of General Counsel; this meeting had been requested by the Canadian Embassy in Washington. Six days later, Canadian Minister Marcel Masse, elected representative of the asbestos mining region of Frontenac, Quebec, ratcheted up the political pressure when he and the Canadian Ambassador to the U.S. Allan Gotlieb27 held talks with EPA Director Lee Thomas on the Agency’s “proposed rule regarding asbestos.” 28 Also at the September 16 meeting were “various staff from EPA, the Canadian Embassy, and the Federal Government of Canada.” In a follow-up letter sent by Masse, which was carbon copied to Ambassador Gotlieb, the Minister reiterated Canada’s arguments: • the scientific justifications for the ban advanced by the EPA were incorrect; • there were factual errors in EPA arguments and analyses; • a formal hearing process was needed to resolve the discrepancies which would necessitate “full cross-examination privileges for all parties;” • the controlled use of asbestos, which was based on sound science and medical evidence, was the preferred option. No doubt in the spirit of North American fellowship, Masse included in the envelope sent to the EPA Director a copy of a six-page speech the Minister had made three days earlier at the 11th Industry–Government Conference of the Asbestos Information Association/North America.29 25

Evidence given by Paul Gerin-Lajoie to EPA hearings on July 18, 1986. EPA archive document file F1-020e ( p. 189-195). Online: http://www.banasbestosecretariat.org/epafile-f1-020e-p189-195.pdf 26 According to the program for that meeting, Minister Savoie was accompanied by Gillis Reny, Political Attache, Bruno Perron, Counselor for Regional Development, and Jean-Marc Roy, Counselor for Regional Aﬀairs. The meeting took place from 10:3011:30 a.m. EPA archive document file NN2-009. September 11, 1986: p1-2. Online: http://www.banasbestosecretariat.org/epa-file-nn2-009.pdf 27 Memo by David Dull, EPA. EPA archive document file NN2-010. October 1, 1986. Online: http://www.banasbestosecretariat.org/epa-file-nn2-010.pdf 28 Letter from Minister Marcel Masse to Lee Thomas. EPA archive document file F1007a(2). September 19, 1986. Online: http://www.banasbestosecretariat.org/epa-file-f1007a(2).pdf 29 Notes for an address by the Honourable Marcel Masse to the 11th IndustryGovernment conference of the Asbestos Information Association/North America. EPA archive document file F1-007a(2a). September 16, 1986. Online: http://www.banasbestosecretariat.org/epa-file-f1-007a(2a).pdf

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Highlighting the “negative impact on asbestos markets here and abroad” of the EPA’s proposals and acknowledging that U.S. imports of Canadian raw asbestos fiber the previous year (1985) had been worth U.S. $ 42 million,30 Masse concluded his remarks with the statement: “The battle for asbestos has been long and diﬃcult but much progress has been made towards a worldwide consensus that the mineral can be used safely. Canada has a decided interest in promoting the principle of controlled use in order to ensure the survival of our asbestos industry. But we have a higher calling. It is to protect the health and safety of our asbestos workers and the general public. That responsibility has always outweighed any economic consideration . . . Canada and the United States have established a long and close relationship based on mutual trust and goodwill. We have always been able to work out our diﬀerences, just as we will over the issue of this important commodity. But let the position of the Government of Canada remain clear. We are convinced that the finest contributions of asbestos have yet to be made, and we are committed to that end.” The EPA was under a continuous bombardment from Canadian representatives and their lawyers as well as U.S. bodies representing industry interests and their lawyers. An EPA circular sent on August 15, 1986 regarding the availability of the transcript of oral testimony given at the Asbestos Hearings the previous month was copied to 32 participants including: P. Gosselin, Minister-Counsellor Canadian Embassy, Gary Nash, The Asbestos Institute, B. J. Pigg, Asbestos Information Association, John B. March, Raymark Corporation, Joseph P. Chu, General Motors Corporation, John A. Gray, Dow Chemical Company, George C. Nield, Automobile Importers of America, Dr. Fred W. Bowditch, Motor Vehicles Manufacturers Association, Dr. Robert G. Smerko, the Chlorine Institute as well as lawyers at Kirkland & Ellis, Arent, Fox, Kintner, Plotkin & Kahn, Clayton Associates, Inc., LaRoe, Winn & Moerman, O’Melveny & Myers, Schnader, Harrison, Segal & Lewis; the remaining recipients of this circular were trade unionists, asbestos victims’ representatives and their allies.31 30 While Canadian Minister Masse stated that the value of U.S. imports of raw Canadian chrysotile asbestos in 1985 was U.S.$ 42 million, U.S. sources quoted earlier in this paper gave a figure of CAN$ 72 million for this trade. According to the Library of the Canadian Parliament, in 1985 CAN$ 72 million was worth U.S.$ 52.51 million. Clearly, the figures do not tie up. 31 EPA Circular. EPA archive document file F1-020h. August 15, 1986 (p.1-5). Online: http://www.banasbestosecretariat.org/epa-file-f1-020h.pdf

§2. Implications of U.S. Ban for Canada

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Correspondence sent to the EPA in August and September 1986 by lawyers Roger W. Patrick and Edward Warren, Counsel for the Asbestos Information Association/North America and the Asbestos Institute, not only reveal the detailed attention paid to the EPA’s actions but also suggest the scope of financial resources available to the ban’s opponents.32 At that time Patrick, who was two years out of law school, was likely to have been a fairly junior member of the law firm of Kirkland & Ellis but Warren had, by then, been a partner at the firm’s Washington D.C. oﬃces for eight years; typical hourly billing rates for legal professionals occupying their positions were respectively $100 and $19033 . Judging by the documents emanating from Kirkland and Ellis, it seems clear that many billable hours were racked up working on this file. Even as the industry’s U.S. lawyers continued their work, pressure was maintained by the Ottawa Government. On September 11, 1986, Canadian Ambassador Allan Gotlieb reminded EPA Administrator Lee Thomas, as if he needed any reminding, that “Canadian authorities are following closely the EPA asbestos rule-making process.” In a hand-delivered letter which was carbon copied to Clayton Yeutter, U.S. Trade Representative, Malcolm Baldridge, U.S. Secretary of Commerce, Donald Hodel, U.S. Secretary of the Interior, and Allen Wallis, U.S. UnderSecretary for Economic Aﬀairs, Gotlieb reiterated the Canadian authorities request that EPA agree to proceed to hearings in which all parties evidence is subject to cross-examination.” 34 There was to be no reprieve from the Canadian onslaught for Thomas. On October 3, 1986 Canadian Minister Marcel Masse again wrote to him. 35

Other lawyers at this firm named as acting for the AIA/NA and the AI are: Timothy S. Hardy and John A. Zackrison. Letters from Kirkland & Ellis sent in August and September 1986 to the EPA are in EPA archive document files F1-020d, F1-020e ( p.1-3) and F1-020L (p.1-8). Online: http://www.banasbestosecretariat.org/epafile-f1-020d.pdf http://www.banasbestosecretariat.org/ epa-filef1-020e-p1-3.pdf http://www.banasbestosecretariat.org/epa-file-f1-020l-p1-8.pdf EPA correspondence sent during the Summer of 1986 to Kirkland & Ellis are in EPA archive document files F1-020a and F1-020b. Online: http://www.banasbestosecretariat.org/epa-file-f1-020a.pdf http://www.banasbestosecretariat.org/epa-file-f1-020b.pdf 33 http://www.justice.gov/usao/dc/divisions/civil laﬀey matrix 1.html 34 Letter from Canadian Ambassador to EPA. EPA archive document file F1-006. September 11, 1986. Online: http://www.banasbestosecretariat.org/epa-file-f1-006.pdf 35 Letter from EPA to Canadian Minister M. Masse. EPA archive document file F1-008b. October 27, 1986. Online: http://www.banasbestosecretariat.org/epa-file-f1-008b.pdf

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More than two years later, Masse was still trying to influence EPA policy as evidenced by a letter of December 16, 1988 in which the Minister again raised “certain technical points pertinent to the asbestos debate.” Standard arguments in the Canadian asbestos orthodoxy were advanced: • “sound scientific evidence . . . has demonstrated that because the [asbestos] fibres are firmly bound in the cement matrix, asbestos cement products are safe to use.” • “cost effective technology can be used to reduce exposure to asbestos dusts in brake shops thirty-fold . . . ” • “An EPA ban on asbestos products would undermine this important ILO initiative [1986 ILO Convention on Safety in the Use of Asbestos] and ultimately jeopardize the progress achieved worldwide on ensuring that asbestos is properly used in a manner to obviate health and safety concerns.” 36 Masse’s letter was dispatched on December 19 to Thomas by Canadian Ambassador Allan Gotlieb37 who hoped that Thomas would “be available to receive a telephone call from me on this subject.” Four months later, a new Canadian Ambassador D. H. Burney thanked new EPA Administrator William Reilly for meeting him on April 7, 1989 “to discuss our concerns regarding EPA’s proposal to ban the use of asbestos in the United States.” 38 In the last sentence of Burney’s letter, the Ambassador offered to arrange a briefing for EPA staff by “Sir Richard Doll and other key scientists . . . ” The Canadians made sure that their objections were known in as much detail and to as many people as possible. The Canadian Prime Minister Brian Mulroney discussed the EPA ban with President Reagan; Quebec’s Premier Jean-Robert Bourassa held talks on the proposals with U.S. trade officials in Washington early in 1986.39 Documents sent between January 1987 and January 1989 to the EPA’s Office of Pesticides and Toxic Substances reveal the length to which the authorities in Ottawa were prepared to go (Table 1).

36 Letter from Canadian Minister M. Masse to EPA. EPA archive document file N6-2(1). December 16, 1988. Online: http://www.banasbestosecretariat.org/epa-file-n6-2(1).pdf 37 Letter from Canadian Ambassador Gotlieb to EPA. EPA archive document file N6-2. December 19, 1988. Online: http://www.banasbestosecretariat.org/epa-file-n6-2.pdf 38 Letter from Canadian Ambassador D. H. Burney to EPA. EPA archive document file N8-2a. April 25, 1989. Online: http://www.banasbestosecretariat.org/epa-file-n8-2a.pdf 39 Evidence given by Paul Gerin-Lajoie to EPA hearings on July 18, 1986. EPA archive document file F1-020e ( p.189-195). Online: http://www.banasbestosecretariat.org/epafile-f1-020e-p189-195.pdf

§2. Implications of U.S. Ban for Canada

Table 1.

157

Canadian Documents

Title of Document/ Extract

Date

No. Pages 25

File No. N78(3)40

Written Comments by the Government Of Canada : “The collapse of EPA’s supporting evidence leads inexorably to one conclusion: The proposed rule must be withdrawn.” Submission of the Government of Canada: “Canada argued in January, 1987 that the rule should be withdrawn, pending the production of new evidence. The new evidence presented to date reinforces Canada’s belief that the rule is not supported by the evidence and should be withdrawn.” Written Reply. Comments by the Government of Canada: “The Government of Canada submits that the proposed rule [. . . ] will place the United States in a position inconsistent with the international community, the majority of which have accepted the philosophy of controlled-use.” Note No. 17 from the Canadian Ambassador to the U.S. Department of State: “The Government of Canada believes that the possibility of a consensus between major trading partners should be further explored before radically diﬀerent regulatory initiatives are launched, especially when one initiative is based on objective scientific evidence and the other on deficient and incomplete data.”

Jan. 1987

June 1988

N78(2)41

Oct. 1988

N78(4)

Jan. 1989

N78(1)43

At the same time as letters, calls and oﬀers were flying around from Canadian and Quebec Ministers, diplomats and politicians, industry bodies were also on active duty. President of the Asbestos Information Association/North America Bob Pigg requested meetings with the EPA’s Administrator Thomas in correspondence dated December 2 and 19, 1986, and March 3, 1987.44 On March 13, 1987, Thomas responded to Pigg’s demands 44 Letter from B. J. Pigg, Asbestos Information Association, to EPA. EPA archive document file N2-002c. March 3, 1987. Online: http://www.banasbestosecretariat.org/epa-

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for a face-to-face45 by referring to the March 18 meeting scheduled for Pigg with EPA representatives Francis S. Blake and John A. Moore. “Should I feel the need to meet personally with interested parties outside the Agency,” Thomas wrote “I will certainly do so.” One can only imagine the frustration Pigg must have felt at not being given an audience with the Chief of the EPA, an organization which Pigg alleged had been unwilling to “engage seriously over the past three years in these [asbestos ban] discussions.” 46 Pigg was in no doubt about the harm caused by the EPA proposals as he made clear in his statement at the EPA’s public hearings on July 15, 1986: “The asbestos industry is currently suﬀering economic diﬃculties because of the tremendous uncertainty caused by continuing governmentannounced plans to issue new regulations in the absence of actual promulgation of such regulations. This uncertainty makes it impossible for asbestos companies and their customers to plan for the future . . . The mere presence of the proposal is causing significant harm to our members by unduly and without justification discouraging safe use of asbestos. Even more importantly, the presence of the proposal is harmful to society by de facto imposing both substantial economic costs and potential health and safety risks concomitant with increased use of substitutes.” Three days later, Canadian Gary Nash, President of the Asbestos Institute, made a much more direct attack on the EPA: “Obviously, I am not here today to help you ban asbestos. I believe that your proposal is unjustified and lacking in scientific foundation. Whatever your motivation for this proposal, it is not concern about worker and public health and safety . . . With all due respect, you don’t know what you are talking about. Obviously, your view that [there is] ‘no safe level of exposure’ goes too far. Asbestos is ubiquitous . . . Will EPA try to regulate or ban natural environmental release of asbestos fibres into the water or air? Possibly you could start with the state of California, since virtually the whole state is situated on asbestos-bearing serpentine rock.” 47 The considerable input that Canadian and industry interests had in the 1986 EPA public hearings was a source of pride for the anti-ban lobby. In a file-n2-002c.pdf 45 Letter from EPA’s Lee Thomas to B. J. Pigg. EPA archive document file N2-002d. March 13, 1987. Online: http://www.banasbestosecretariat.org/epa-file-n2-002d.pdf 46 Evidence given by B. J. Pigg to EPA hearings on July 15, 1986. EPA archive document file F1-020e (p. 7-16). Online: http://www.banasbestosecretariat.org/epa-file-f1-020e-p716.pdf 47 Evidence given by Gary Nash, President of Asbestos Institute, to EPA hearings on July 18, 1986. EPA archive document file F1-020e (p.156-164). Online: http://www.banasbestosecretariat.org/epa-file-f1-020e-p156-164.pdf

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speech to the 6th biennial conference of the Asbestos Information Association, the new President of the Asbestos Institute Claude E. Forget bragged that the Institute and the Asbestos Information Association/North America had “succeeded in demonstrating the inaccuracies, deficiencies and inconsistencies inherent in the EPA’s proposed rule to ban and phase-out asbestos use in the United States. This was a real and important success . . . ” 48 As his predecessor Gary Nash had done, Forget spoke with disdain about the EPA’s “regulatory overkill” and asked whether the agency’s next initiative would be to ban “rainy days or excessive tides.” Lawsuit against Asbestos: Manufacture, Importation, Processing and Distribution in Commerce Prohibitions 49 Given that the EPA would not rescind its rule and that the anti-ban axis would not accept the “death penalty” option for asbestos, it was inevitable that this dispute would wind up in court. During the New Orleans trial, Canadian interests were represented by American lawyers as well as by the Attorney for the Government of Canada who submitted a 20-page Amicus Curiae brief claiming Canada’s right to be heard in this matter as: “Canada is interested in promoting international commerce and therefore in promoting the international harmonization of regulations. Canada considers this Rule inconsistent with its own regulatory approach to asbestos health risks and . . . submits that it will unnecessarily impede international commerce.” 50 As would be expected, a number of asbestos stakeholders were parties to the lawsuit: Canadian litigants • The Federal Government of Canada was represented by Donald N. Dewees from Toronto. • The Amici-Applicant Province of Quebec was represented by Arthur Kahn, from the law firm of Schnader, Harrison, Segal & Lewis in Philadelphia. • The Asbestos Institute was represented by Edward W. Warren, Timothy S. Hardy, Susan M. O’Sullivan and Kathleen L. Blaner from the law firm of Kirkland & Ellis in Washington. 48 Forget C. Message from the Asbestos Institute President. EPA archive document file N2-020(1). May 19, 1987 (p.1-15). Online: http://www.banasbestosecretariat.org/epafile-n2-020(1).pdf 49 Federal Register. Part III Environmental Protection Agency 40 CFR Part 763. July 12, 1989. http://www.epa.gov/asbestos/pubs/frl-3476-2.pdf 50 Brief Amicus Curiae of the Government of Canada in Corrosion Proof Fittings, et al. v. Environmental Protection Agency. No. 89-4596. May 22, 1990.

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• Cassiar Mining Corporation was represented by David Booth Beers and Michael S. Giannotto from the law firm of Shea & Gardner, in Washington. U.S. litigants • Corrosion Proof Fittings et al, was represented by Robert E. Holden, Mary S. Johnson, from the law firm of Lislow & Lewis, in New Orleans. • The Institute of Scrap Recycling Industries, Inc. was represented by Duane A. Siler from the law firm of Patton, Boggs & Blow in Washington. • Caterpillar, Inc. was represented by Jeryl Dezelick and Robert E. Mann from the law firm of Seyfarth, Shaw, Fairweather & Geraldson in Chicago. • The Asbestos Information Association, et al and Asbestos Cement Pipe Producers et al were represented by Edward W. Warren, Timothy S. Hardy, Susan M. O’Sullivan and Kathleen L. Blaner from the law firm of Kirkland & Ellis in Washington. Although the 5th Circuit Court of Appeals did not find merit in the Canadian petitioners’ assertion that under U.S. law “any person” capable of arranging transportation to the courthouse door had a right to be heard,51 the ruling handed down on October 18, 1991 was a huge victory for the Canadians and other asbestos stakeholders. With no support from the Justice Department, no appeal of this verdict was made to the Supreme Court. And that, it seems was that. In some ways the judgment of the Court of Appeals was a pyrrhic victory. From 1991 to 2007, U.S. asbestos imports declined year by year from 20,061 tonnes (1991) to 1,731 tonnes (2007). Data from the next three years showed a brief resurgence in 2008 to 3,094 tonnes but only 869 tonnes were imported in 2009 and 1,044 tonnes in 2010. It seems that the fear of asbestos liabilities succeeded where regulatory agencies and Congress had failed; the American public would no longer tolerate asbestos even if their elected representatives were too scared or incompetent to enact regulations prohibiting its use. Nowadays, consumption of raw asbestos in the U.S. is virtually nil; nevertheless, there is a symbolic importance of a ban for American workers as well as for citizens at home and abroad. Surely, the 20th anniversary of the appellate ruling would be an appropriate time to ban asbestos in the U.S. If not now, when? 51

Paragraph 17 of the judgment of the U.S. Court of Appeals for the Fifth Circuit ruled that the Canadians did not have the right to be heard: “The Canadian petitioners do not have standing to contest the EPA’s actions. Nothing in the statute requires the EPA to consider the eﬀects of its actions in areas outside the scope of section 6 [. . . ] We therefore do not consider the arguments raised by the Canadian petitioners.”

§3. Concluding Thoughts

161

3. Concluding Thoughts The details contained in this exposé of Canada’s attack on the U.S. ban are just part of the story. No doubt given more time and resources, there is more that could be learned. Nevertheless, in trying to explain why the U.S. has still not banned the world’s worst industrial killer, the collection of documents amassed sheds enough light on what took place to enable us to draw some conclusions. It is conceivable that without the involvement, support and influence of Canadian asbestos interests, the attack on the EPA’s Asbestos Ban and Phase-out Rule might well have failed. Should that have been so, then several things could have transpired. The U.S. would, by now, have benefited from twenty years of using asbestos-free products; a generation of workers would have escaped hazardous exposures to new asbestoscontaining products even if the risks posed by contaminated material within the national infrastructure remained. In every case, less exposure is better than more. Countries in the developing world, where the vast majority of asbestos use now takes place, might have followed the U.S. example and banned asbestos. Faced with the contraction of global markets, asbestos production would have become less profitable; denied the financial means to bribe politicans, disseminate industry propaganda and buy pro-asbestos science, industry stakeholders would have lost control of national asbestos agendas. With more awareness of the asbestos hazard, safer alternatives would have become more popular, leading to an increased scale of production and lower unit costs. Beset by local and worldwide diﬃculties, members of the global asbestos mafia would have turned on each other; as a consequence of this disunity, obstacles to asbestos bans in some countries could have dissipated. The increasing restrictions on asbestos use, fall in consumer demand and discord amongst vested interests might very well have brought an end to the asbestos era. Of course, it is not possible to say what might or might not have happened had the Canadians stayed on their side of the border when it came to deciding on how the U.S. Government could best protect the lives of American workers. It is interesting to note that at the same time as Canada was pimping for its asbestos industry in Washington D.C., it was taking the moral high ground over acid rain from the U.S. which was killing lakes, fish, crops and trees in Canada. When it comes to asbestos, there has been neither logic nor morality in the actions of successive governments in Ottawa and Quebec. One example which stood out like a sore thumb when reading through the hundreds of pages of documents that make up the bedrock of this paper was the Canadian justification for its “controlled use” asbestos policy. In the 1980s, Canada said there was a consensus amongst countries and international agencies which supported this policy. Of course that was not true, but for the sake of argument let us pretend it was. So, the 1986

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position on safe use is vindicated and upheld by a global consensus which means the EPA should drop its ban proposal and follow the Canadian lead. In 2011, all major international agencies have adopted policies supporting a ban on asbestos as have 55 national governments and the vast majority of independent scientists, medical professionals and researchers. When this fact is put to asbestos representatives, they reply: “Well, they are wrong.” So, what suited them in the 1980s no longer suits them now. One thing is undeniable: the Canadian mindset is very flexible when it comes to interpreting facts and developments related to asbestos. In the end what does this “bloody anniversary” mean. As well as providing the occasion for a retrospective look at how greed trumped morality back in the bad old days and indulging in a series of “what-if” hypotheses, the date of October 18 could become a rallying point for future action on the global asbestos scandal. The date could be adopted by the 100 asbestos victims support groups around the world as the “Asbestos No Day.” The Greek “No Day,” which celebrates the country’s reply to a foreign dictator’s ultimatum, is marked on October 28, a day when valiant Greek politicians refused to bow down in the face of superior force. In a similar vein, October 18 could be the day the world stands up to the asbestos dictators, the faceless men behind their desks far removed from those whose lives are threatened by their incautious actions. On October 18, let citizens in Ottawa and Quebec descend on the Parliament and National Assembly en masse to show their elected representatives that Canadians do not support the mining, sale and export of asbestos. Let people in asbestos-using countries like China, India and Indonesia take action to express their objections and citizens in all asbestos-producing nations make their views known in any way possible. Transforming the ignominy of October 18 from a day of defeat into one of hope would be something worth doing for all our sakes. Received 5 February 2013

Chapter 13

Asbestos and the World Trade Organization by Michel PARIGOT In 2000, the World Trade Organization (WTO) rendered a judgement – historic in many ways – which brought an end to the dispute which opposed Canada against France and the European Community. The Canadian government had contested the right of France to protect its people by banning asbestos and had contended that this ban constituted a barrier to free trade. The dispute is called: “European Communities – Measures Aﬀecting Asbestos and Products Containing Asbestos”.

1. History of Canada’s complaint to the WTO Let us start with a quick recap of events. 1996 : France bans asbestos Until 1995, France was an important client for Canada, having imported about two million tons of asbestos originating from Quebec in the course of the 20th century, with a peak in 1974 when France imported 85 000 tons of Canadian asbestos. However in the mid 90s the hazards and damages caused by asbestos were denounced more and more vehemently. Following intense debates and the presentation of the 1996 report by INSERM on «Eﬀets sur la santé des principaux types d’exposition à l’amiante» (Health eﬀects of exposure to asbestos), the French government decided to ban asbestos in France. The asbestos ban was announced publicly by the Minister for Labour and Health (Jacques Barrot) on the 3rd July 1996; it entered into force on 1 January 1997, enacted in Decree No.96-1133 of 24 December 1996. – 163 –

164

13. Asbestos and WTO – M. Parigot

France was only the 11th country in Europe to ban asbestos; the following countries had already banned it: Austria, Denmark, Finland, Germany, Iceland, Italy, Norway, the Netherlands, Sweden and Switzerland. However this decision was very important because it lifted the final hurdle for the adoption by the European Union of a directive recommending the ban of asbestos in all its member states: in 1999 it was the turn of the United Kingdom to ban asbestos; the ban of asbestos in the European Union was approved on 4th May 1999 and the directive of 26 July 1999 made it official. Canada and its asbestos merchants knew very well that they would no longer be able to sell asbestos to France and most of Europe but they feared contagion and decided to counter-attack. To start with, the Canadian authorities asked the Royal Society of Canada for a report to counter the INSERM report. The clearly-stated aim was to discredit this scientific report. The report was quickly produced and was named simply “A Review of the INSERM Report on the Health Effects of Exposure to Asbestos”. The operation failed miserably; in fact the commission chose an epidemiologist who worked for the International Agency for Research on Cancer in Lyon and for the Institute for Cancer Research in Florence. Some of the experts named by the Canadians did attempt to denigrate the text of the collective expertise but the main chapter (the one concerning epidemiology) concluded “The INSERM Report is of an exceptional quality, accuracy and exhaustiveness”. 1998 : Canada files a complaint with the World Trading Organization (WTO) The visit of the prime minister, Jean Chrétien, at the end of January 1997, did not succeed in softening the French position. As the Canadian government could not find support among the scientific community, it turned towards the international trade organisations. In a communication dated 28 May 1998, Canada requested consultations with the European Community (EC) pursuant to Article XXII of the General Agreement on Tariffs and Trade (GATT), Article 11 of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) and article 14 of the Agreement on Technical Barriers to Trade (TBT Agreement) to protest against the measures taken by the French government for the prohibition of asbestos. The consultations having failed to settle the dispute, Canada requested the Dispute Settlement Body (DSB) establish a panel to investigate the French measures. Canada alleged that the French Decree violated Articles 2 and 5 of the SPS Agreement, Article 2 of the TBT Agreement and Articles III and XI of the GATT 1994 and also annulled or impaired one or several benefits accruing to Canada, under Article XXIII :1b of the GATT 1994.

§1. History of Canada’s complaint to the WTO

165

The European Community (EC) for its part invoked Article XXb stating that the decree was necessary to protect human health. Canada alleged that the French decision to ban asbestos did not constitute an indispensable measure for public health but an intolerable attack on free trade. The Canadian government therefore decided to file a complaint against France and the European Community for impeding trade; the decision to file a complaint against the European Community was motivated on the one hand by the wish to avoid Europe deciding too quickly on an asbestos ban, and on the other to ensure that the experts the WTO would have to name would not be European. Three countries intervened as third party into the procedure. 1) The United States supported the French position and denounced the Canadian lies. This is the one and only time where the United States and the European Community defended the same cause in front of the WTO! 2) Brazil supported Canada with a series of lies fairly similar to the Canadian allegations. 3) Zimbabwe also supported the Canadian stance. Brazil and Zimbabwe were at the end of the 90s respectively the 4th and 5th asbestos producers in the world and therefore tried to help Canada – their commercial competitor and the second producer in the world at that time1 . Canada requested the WTO recommend to France that it made the Decree compatible with its obligations under the Agreement on Technical Barriers to Trade and GATT 1994. The European Community requested the WTO reject all the arguments put forward by Canada. The Canadians were optimistic: they had previously invoked the GATT Agreements in their procedure to annul the prohibition of asbestos promoted by the EPA in the United States. Even though the American judges rejected Canada’s interference and in particular any considerations on international trade, the ban on asbestos promoted in the United States in 1989 was partially cancelled in 1991 (See the article by Laurie Kazan Allen in this book). 2000 : The WTO maintains the asbestos ban The WTO set up a panel responsible for the application of the procedure regarding the settlement of disputes. The procedure was a lengthy one because naturally the WTO judges wanted to gather expert opinions on the scientific questions pertaining to asbestos. The panel of experts nominated 1

The collaboration between Canada and Brazil was an active one: in 2002 the Instituto Brasileiro do Crisotila was oﬃcially created. It was modelled on the Canadian Chrysotile Institute which was warmly thanked for its support.

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by the WTO and accepted by the parties was composed of three Australians (Dr de Klerk, Dr Henderson and Dr Musk) and an American (Dr Infante). The main conclusions retained by the WTO from the reports and declarations of the experts panel were as follows: 1) There is no level of exposure to chrysotile asbestos which does not entail a cancer risk. 2) The “controlled” use (or “safe use”) of asbestos is not realistic, particularly in the building industry. 3) Products which do not present the same risks are available to replace the most common products containing asbestos, notably the building materials in asbestos-cement. The WTO began by stating that the asbestos ban was in part contrary to the GATT Agreement but recognised however, that the asbestos ban was a health measure necessary for the protection of health and life and therefore perfectly justified under Article XX of the GATT 1994. Article XX of GATT states precisely that: “Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures [. . . ] necessary to protect human, animal or plant life or health [. . . ]” 2001 : The WTO dismisses Canada’s appeal The Canadian government was obviously disappointed and decided to appeal the decision of the WTO, arguing that the judges of the first panel had committed errors in law and wrongly interpreted scientific facts. Brazil and the United States maintained their positions, Brazil continuing to support Canada’s approach, the United States acknowledging that France’s decision was rational and targeting a public health imperative. Zimbabwe requested to attend the new debate only and did not intervene. Among the lies put about through the oﬃcial channel of the appeal by the representatives of the Canadian government we can quote: – “it is the friable materials containing amphiboles which pose a risk to human health; the manipulation of chrysotile-cement products do not pose a danger to human health” – “that there is no increased risk among garage and brake mechanics, or among construction workers, resulting from the manipulation of chrysotile asbestos”

§2. The legal arguments of both parties

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– that on the other hand there was a risk with “the false sense of security created among the French public due to the absence of such a framework [for the regulation of the controlled use of substitute products]” Canada also tried the argument which had worked with the American appeal court to overturn the decision to ban asbestos in the United States which is that according to the Canadian representatives, “a less trade-restrictive alternative can only be ruled out if it is shown to be impossible to implement” and also that “ there are relevant international standards on the controlled use of chrysotile, which constitute an eﬀective and appropriate means to achieve France’s objective of protecting human health”. One remains perplexed by these so-called “international standards” which Canada is very careful not to quote. The Canadian Chrysotile Institute has often tried to make believe that the Asbestos Convention 1986 (No.162) of the International Labour Organisation (ILO) recommended controlled use, which is completely untrue2 ; similarly the World Health Organisation does not in any way advocate controlled use.

2. The legal arguments of both parties The arguments of Canada to justify the continued export of asbestos and attempt to cancel the French ban were essentially the following: – Minimisation of the risks. There are less deaths from asbestos than tobacco. A great number of the cancers seen today are due to the old way of dealing with asbestos. – The argument amphibole/chrysotile. Canada has long tried to advance the theory that only amphiboles (mainly crocidolite - blue asbestos; and amosite - brown asbestos) are really dangerous. This was convenient since Canada produced chrysotile asbestos which represented more than 90 % of the asbestos produced in the world. – Controlled use. Canada claimed that rigorous control procedures help lessening the amount of asbestos dust every time it is used, so that the risks become “undetectable”. – The problem of substitute products. Canada drew attention to the fact that we are not certain of the harmlessness of some of the products used as a substitute for asbestos. France and the European Community on the contrary maintained that : – all types of asbestos are carcinogenic: if there is evidence that chrysotile in equal doses, causes less mesothelioma, it is not possible to diﬀerentiate 2

In fact the International Labour Organization later put out a press release saying precisely this and demanding a ban on asbestos. http ://www.ilo.org/global/about-theilo/media-centre/press-releases/

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the risk for lung cancer. Furthermore chrysotile has been classified as a carcinogen by the International Agency for Research on Cancer since 1977. – controlled use is, at least theoretically, possible in the mining and processing industries but is impracticable for building workers (construction and maintenance), DIY enthusiasts, users of materials, etc. – the INSERM report estimates there are more than 2000 deaths per year in France due to asbestos. – some substitute products (those without fibres) do not present a risk for health. The fibrous substitute products, even if they cannot be considered harmless, do not present the same risks for health as asbestos. Canada claimed that the French asbestos ban decree was a “technical regulation” and as such fell within the scope of the Agreement on Technical Barriers to Trade (TBT Agreement, Articles 2.1, 2.2, 2.4 and 2.8). In particular Canada claimed that the Decree – was an unnecessary barrier to trade (therefore incompatible with the provisions of Article 2.2 of the TBT Agreement) – was not based on the existing international standards (therefore incompatible with the provisions of Article 2.4 of the TBT Agreement) – was not based on the appropriate use of asbestos fibres and asbestos containing products (therefore incompatible with provisions of Article 2.8 of the TBT Agreement) – and was discriminatory under Article 2.1 of the TBT Agreement. The first finding of the WTO was that the Decree did not constitute a technical regulation and in consequence was not covered by the TBT Agreement. The main point of the procedure concerned the GATT Agreement (Articles III :4 and XXb). The WTO accepted one of the arguments put forward by Canada based on Article III :4 of the GATT Agreement which says mainly that a country must not give less favourable treatment or apply discriminatory measures to like products. After lengthy discussions, the WTO concluded that asbestoscement products were similar to fibro-cement products (most often made from cellulose fibres, Poly Vinyl Alcohol fibres (PVA) or glass-fibres) as they have the same aspects, characteristics and use. The French Decree did however ban the manufacture and import of asbestos-cement products but did not ban the manufacture and import of fibro-cement products with no asbestos3 . The WTO therefore concluded in 3

At this stage the WTO specifies that the dangerousness cannot be taken into account in this argument as the questions on health are dealt with in paragraph XX of the GATT Agreement.

§2. The legal arguments of both parties

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the first instance that the French Decree prohibiting asbestos violated the provisions of Article III :4 of the GATT Agreement: it was a measure which gave a commercial treatment less favourable to like products. The key point of the procedure and decision of the WTO was to see whether this violation could be justified as a measure of public health under the Article XX of the GATT Agreement (notably meant to protect human health and life). Article XX of the GATT Agreement already mentioned above states that: “Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Member of measures necessary to protect human, animal or plant life or health.” The WTO interpreted the text of Article XX in an extremely restrictive manner: to be justified under this article, according to the WTO, such a measure must be based on: – a clearly stated objective; – a clearly established risk based on science; – necessity, which means [for the WTO], that there must not exist a reasonably available alternative less contrary to free trade; – a justification that the measure does not constitute “a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail ”; – a proof that the measure does not constitute a “disguised restriction on international trade”. However the experts from the WTO had little choice but to acknowledge that all these conditions were met regarding the ban on asbestos. Thus they pointed out that – the objective of public health was clearly established: to protect the French people and in particular the building workers from the risk of cancer due to asbestos; – the dangers due to the use of asbestos had largely been proved by science and had even been largely quantified; – the measure was “necessary”; the report argued: “a fortiori and for the following reasons, we consider that controlled use is not a reasonably available alternative in all the other sectors [other that the mining and processing industries] in which workers may be exposed to chrysotile.” The panel noted that Canada’s arguments under Article III :4 were limited to chrysotile and chrysotile-cement products. In fact, chrysotile is

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mainly used in the building sector. As the experts have confirmed, because of the mobility of workers and their sometimes inadequate training, as well as the large number of sites and therefore of people liable to exposure, it is very diﬃcult to impose on the building sector sophisticated occupational safety practices of the type that can be applied in sectors with smaller numbers of workers concentrated in well-defined areas. In consequence the panel concluded that “the European Communities have shown that controlled use is neither eﬀective nor reasonably available, at least in the building sector and for DIY enthusiasts. Accordingly, controlled use does not constitute a reasonable alternative to the banning of chrysotile asbestos [. . . ]” and added the two further points: • the Decree bans asbestos whatever its source and therefore does not constitute a “means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail ”; • no element was found which could establish that the prohibition Decree was a “disguised restriction on international trade”. The main conclusion of the panel (the WTO) was that, in view of the above, the provisions of the Decree which violated Article III :4 of the GATT 1994 were justified under Article XXb. In other words, the WTO acknowledged the prevalence of decisions taken for reasons of Public Health (Article XXb) on the rules of equity of international trade (in particular Article III:4). Lastly Canada cited the nullification or impairment of a benefit under Articles XXIII :1a and XXIII :1b of the GATT 1994. The main argument was that Canada was surprised and could not anticipate the French decision. The WTO rejected this argument observing with common sense that, in view of the decline of the asbestos trade, notably because of the health problems it causes, given that several countries in Europe had already banned asbestos, it was in fact perfectly predictable that France would take this decision.

3. Conclusions about the ruling of the WTO and its consequences An essential aspect of these procedures before the WTO should be noted from the outset : the burden of proof falls on the advocate for public health. In the case of asbestos these proofs had obviously been available for a long time. The WTO found that the asbestos ban was in part contrary to the GATT 1994 Agreement (General Agreement on Tariﬀs and Trade) but nevertheless recognised that the asbestos ban was a public health measure necessary for the protection of human health and life and therefore perfectly justified under

§3. Conclusions about the ruling of the WTO and its consequences

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Article XX of the GATT Agreement. The WTO therefore rejected Canada’s complaint in 2000, and upheld this decision in 2001, following Canada’s appeal. The WTO recognised, in the case of asbestos, the prevalence of decisions taken for reasons of Public Health (Article XXb of the GATT Agreement) on the rules of equity in international trade (in particular Article III :4). However it it worth noting that the argument was clearly studied carefully so as to apply only to asbestos; the worry was clearly to avoid a breach which would allow public health needs to prevail over purely commercial considerations. The WTO has remained faithful to its principles. Another point is particularly worrying: the whole of the procedure clearly shows that for the WTO the burden of proof lies with the country which wishes to take public health measures. Thus the European Community had to provide the proof of the dangers posed by asbestos and of the impossibility of putting into place a less restrictive but adequately protective regulation. Common sense and public health should mean that, on the one hand, the health authority or the health minister of a country can take the measures corresponding to a risk for part of the population and on the other hand that the burden of proof of harmlessness lies with the product seller. One last point deserves to be highlighted. Even if the statements of the panel of experts, parties and reports from both the Panel and the Appellate Body have been made public at the end of the procedure, the whole procedure remains mostly opaque. Received 31 January 2014 Translated from French by Fleur Pettie References 1) On WTO website, dispute settlement. Dispute DS135 (summary and documents, in French , English and Spanish), European Communities – Measures Affecting Asbestos and Products Containing Asbestos: http://www.wto.org/english/tratop e/dispu e/cases e/ds135 e.htm (in French) www.wto.org/french/tratop f/dispu f/cases f/ds135 f.htm 2) INSERM Report on asbestos : Rapport d’expertise collective INSERM, Effets sur la santé des principaux types d’exposition à l’amiante, 1996: http://lara.inist.fr/handle/2332/1373 3) Société Royale du Canada, Report on the INSERM report, November 1996 Étude du rapport INSERM sur les effets sur la santé de l’exposition à l’amiante. http://rsc-src.ca/fr/groupes-dexperts/src-rapports/%C3%A9tude-durapport-inserm-sur-les-effets-sur-la-sant%C3%A9-de-lexposition-%C3%A0

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4) Libération, 11 January 1997, Le Canada défend son amiante Un rapport conteste l’interdiction française. A la clé: un énorme enjeu commercial. www.liberation.fr/economie/1997/01/11/le-canada-defend-son-amiante-unrapport-conteste-l-interdiction-francaise-a-la-cle-un-enorme-enjeu-c 194385

Chapter 14

Asbestos in India – Struggles and Realities by Mohit GUPTA India is the largest importer of asbestos, according to the United Nations Commodity Trade Statistics Database1 . Asbestos is primarily imported from Russia, Brazil, Canada and Kazakhstan. Over 90% of it goes into making corrugated roofing sheets that sell for as little as INR 300 (USD 7) and water pipes. More than 300,000 people in India are employed by companies producing the material directly or indirectly. In addition, millions of construction workers are using asbestos products during construction activities with little or no protection. An estimated 55,000 workers, unmindful of the lethal eﬀects of asbestos-laden material in the ships, slave for long hours and are exposed to its deadly fibres breaking ships at the Alang Ship breaking yard. There is no data available about number of small and medium scale enterprises using asbestos but there are 61 large manufacturing facilities owned by 17 companies.

1. Indian background. Despite the fact that asbestos is dangerous, the asbestos industry has been on an expansion spree and increasing their capacity and production in India. False information is spread about the safety and controlled use of asbestos whereas it has been cited by agencies like World Health Organisation (WHO) and International Labour Organisation (ILO) that safe use of asbestos is not possible and there is no safe exposure limit. The only way to prevent asbestos related disorders is to stop using asbestos. 1

http://comtrade.un.org/db/ce/ceSnapshot.aspx?px=HS&cc=2524

– 173 –

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Average year on year growth of asbestos cement products has been over 14%. According to Indian Bureau of Mines (IBM) Yearbook 2011, presently, there are about 75 plants engaged in the production of asbestos products in the country and these are mainly located in Gujarat, Karnataka, Madhya Pradesh and Andhra Pradesh. Besides, about 114 asbestos cement sheet and pipe units are reported from Rajasthan. There has been a steady increase in the amount of asbestos fibre consumption and approximately four hundred fifteen thousand tons of asbestos fibres was consumed in 2011 and till April 2012 already one hundred and thirty five thousand tons has been consumed. Table 1 – Asbestos fibre consumption per year in India Year 2004 2005 2006 2007 2008 2009 2010 2011 2012

Consumption in India 185 000 tons 230 000 tons 258 000 tons 283 000 tons 300 000 tons 360 000 tons 400 000 tons 415 000 tons 135 000 tons (approx.) until April 2012

Source : In response to questions answered on 11-5-2012 in Rajya Sabha (Council of States) A 15 percent duty is payable on asbestos imports, according to the Ministry of Commerce & Industry. The tariﬀ, which stood at 78 percent in 1995, has been gradually cut over the past decade.

2. Mining of asbestos in India The total resources of asbestos in the country as on 1.4.2010 are placed at 22.17 million tons. Of these, 2.5 million tons are reserves and 19.6 million tons are remaining resources. Out of the total resources, Rajasthan accounts for 13.6 million tons (61%) and Karnataka 8.28 million tons (37%). The remaining two percent resources are estimated in Jharkhand, Andhra Pradesh, Odisha and Uttarakhand. In June 1986, a ban on expansion of area of existing asbestos mines was placed in the country. The letter banning the expansion stated - “Asbestos mining has deleterious eﬀects on the health of the workers and exposes them to diseases like Silicosis and Pneumoconiosis etc, no expansion in the mining of asbestos should henceforth be permitted”.

§2. Mining of asbestos in India

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In March 1989, the ban was further extended to mining of those minerals as well where asbestos as contamination was found in substantial quantities. Since June 1993, all mining of asbestos has been banned. According to the Indian Bureau of Mines Minerals yearbook 2012 on asbestos, the production of asbestos in 2011–12 was 280 tonnes which increased by about 4% as compared to the previous year. In 2011–12, the entire production was of Chrysotile variety of asbestos and was produced by three mines in Cuddapah district of Andhra Pradesh. The average daily employment of labour strength was 39 in 2011–12 as against 57 in the preceding year. Although the number of workers is decreasing oﬃcially the production has been increasing over the past 3 years. Table 2. – Production of asbestos, 2008–09 to 2010–12 Quantity in 2008-09 Qty Value 315 14521 315 14521

State India Andra Pradesh Rajasthan –

–

tons / value in 2009-10 Qty Value 243 12268 243 12268 –

–

thousands of Indian rupees 2010-11 2011-12 (P) Qty Value Qty Value 268 13341 280 12827 268 13341 280 12827 –

–

(Source IBM Yearbook2 2012) Despite the ban on mining being in place for more than 20 years, these mines continue production of chrysotile asbestos. There is no information available on occupational health and safety of the workers of these mines. The Ministry of Mines further does not seem to have information regarding the mines which existed prior to 1993 and their current condition i.e whether the mines have been closed or abandoned. In case of 3 former mines in Rajasthan, the ministry has stated that the mines are now mining quartz and feldspar and asbestos has been removed from the mineral intend to work. However, how they protect the workers from accidental exposure due to asbestos contamination is not clarified. Mines in this region had large deposits of amphibole variety of asbestos. The IBM year book further states the following regarding mining and milling of asbestos - “The run-of-mine is subjected to manual sorting of asbestos-bearing rock (ABR). ABR is then hand combed for chipping oﬀ the asbestos-bearing portion in small pieces of about 2.5 cm for producing asbestos concentrates. From ABR, the serpentine is removed as a waste. The asbestos concentrate is fed manually into hopper of a hammer mill”. A 2

http://ibm.gov.in/IMYB_2012_Asbestos.pdf

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government agency is admitting that the asbestos bearing rock is still worked upon manually which all other government agencies vehemently deny.

Workers manually sorting asbestos.

3. Imports and Exports No restrictions have been imposed on exports of asbestos in the amended Foreign Trade Policy, 2009-14. As per the prevailing Foreign Trade Policy, asbestos under heading 2524 can be imported freely with the exception of amosite which is restricted. However, the imports of crocidolite, actinolite, anthophyllite, amosite and tremolite are restricted in terms of Interim Prior Informed Consent (PIC) Procedure of Rotterdam Convention for Hazardous Chemicals and Pesticides. Surprisingly India is also an exporter of asbestos fibres. Exports of asbestos were 1296 tonnes in 2011-12 as compared to 231 tonnes in the previous year. Exports were mainly to Italy. In addition exports of asbestos-cement products were 41304 tonnes in 2011-12.

§3. Imports and Exports

Country All Italy Nepal Sri Lanka Uganda Lybia China Others

2009-10 Qty Value 559 1601 – – 533 1209 – – – – – – – – 26 392

177

Qty 231 – 209 36 4 3 ++ –

2010-11 Value 1154 – 390 241 50 10 7 –

2011-12 ⇤ Qty Value 1296 2862 1040 2862 124 387 – – – – – – – – ++ 1

Table 3. – Exports of asbestos: Total (By Countries) Some countries are not reflected in the table. Qty in tonnes and value in INR ’000 ⇤

Imports of asbestos were 378,122 tonnes in 2011-12 against 365,795 tonnes in the previous year. The imports comprised chrysotile asbestos 377,302 tonnes and asbestos (others) 820 tonnes. Imports of asbestos were mainly from Russia (51%), Kazakhstan (18%), Brazil (13%) and Canada (7%). Country All countries Russia Brazil Canada Kazakhstan Ukraine China Egypt USA UAE Unspecified Other countries

2009-10 (Qty in tons) 331 415 152 448 57 427 70 934 45 224 202 377 – 50 – 327 4426

2010-11 (Qty in tons) 365 795 178 479 55 414 58 052 51 844 4588 2204 10010 928 412 1553 2311

2011-12 (Qty in tons) 378 122 193 207 47 484 25 323 66 493 – 17 577 – 3152 – 15 418

Table 4. – Imports of asbestos by Countries Reliable data on consumption of amphibole asbestos was not available as the consuming industries were mostly in small-scale sector, producing lowpressure asbestos-cement pipes used in construction industry. These are the most vulnerable group of workers and unfortunately no data is available and there are no attempts by the government agencies to ensure that this data

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is available.

4. Asbestos in Indian Parliament Issue of ban on use and mining of asbestos has been raised 61 times in Indian Parliament since the year 2000. In a question answered as recently as 11 May 2012 on ban on use of asbestos, the response was muted and hidden behind a research study being carried out by National Institute of Occupational Health (NIOH). Responses have been the same on this question ever since this study was started in 2005. Total cost of study was initially INR 59.66 lakhs (USD 115,000) with INR 16 lakhs (USD 31,000) being contributed by the industry. How much influence will the industry have on the report can only be imagined considering that almost one third of the cost is being contributed by them. The report was handed over in 2008 by NIOH which is still being treated as a draft report. The report has not been placed in public domain for comments even though comments from the industry associations have been received and incorporated. Only large factories were included in the study. The report was commissioned by the Ministry of chemicals and fertilisers so that government of India could take an informed decision on the Implementation of Rotterdam convention on PIC procedures. Although India changed its stance in 2011 and agreed to include asbestos in the PIC list, this study is now being used to influence a decision on ban on use and mining of asbestos. Another draft has been handed over late in 2012 which has been sent to all concerned parties (except NGOs and anti-asbestos activists) for their comments. The final report has been submitted by NIOH and based on its findings the Indian Government reversed its position at the Rotterdam convention in 2013. According to the recommendations of the report: 1. In the present study, the fibre levels were found to be much lower than the national permissible levels. However, it requires regular monitoring of the workplace fibres levels to keep it below permissible levels. 2. At the present low fibre levels, no subject were found to have radiological finding suggestive of interstitial lung fibrosis. However, it is recommended that these subjects should be periodically monitored medically so as to detect any adverse health eďŹ€ects particularly those having restrictive and combines type of pulmonary function abnormalities. 3. Most of the industries were using protective measures like use of PPEs, pre-placement, periodic and post retirement medical examination, for the control and prevention of asbestos related health hazards, these measures are to be implemented by all the asbestos using industries to protect the health of the workers

§4. Asbestos in Indian Parliament

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Asbestos textile workshop ; note the protection with scarf and the logo «LAB Chrysotile» on the bags

The draft report does not find even 1 case of asbestos related disorder in about 1000 persons studied. According to the report, the mean age of workers was found to be highest in the sheet workers of Hyderabad (42.98 ± 3.5 years) while in the sheet industry at Silvassa it was lowest (27.4 ± 6.5 years). The mean age of community residing in the vicinity was 37.66 ± 9.5 years while that of end user was 36.9 ± 9.4 years. The mean duration of job at Silvassa was 4.5 ± 3.2 years. It is well known that asbestos related disorders have an extremely long latency period which can sometimes be more than 30 years. Instead of studying former workers who might have covered this latency period, the study was conducted on a younger population. A worker who is at the job for only 5 years would most definitely not show symptoms of any disorder. The White Asbestos bill (Ban on use and Import) was introduced in Rajya Sabha in 2009. The bill seeks to “provide for a total ban on use and import of white asbestos in the country and to promote the use of safer and cheaper alternative to white asbestos and for matters connected therewith and incidental thereto” 3 . The bill encourages that “The Central Government shall promote and encourage the use of safer and cheaper alternative to white asbestos and provide suﬃcient fund for research and development in the field in such manner as may be prescribed." 3

White Asbestos bill – Bill No. XIII of 2009.

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5. Role of Ministry of Environment and Forests (MoEF) MoEF is the nodal Ministry responsible for giving environment clearances to various factories including asbestos product manufacturing facilities. According to the Ministry “Environmental Impact Assessment (EIA) is an important management tool for ensuring the optimal use of natural resources for sustainable development. The Ministry has issued the Environmental Impact Assessment Notification, 2006, which makes environmental clearance mandatory for the development activities listed in its schedule.” Asbestos fibre manufacturing units have to mandatorily take permission from MoEF to operate. Some facts on the status of clearances given to asbestos based products: – 57 asbestos based industries of varying capacity given Environmental Clearances (EC) by MoEF from year 2000 to April 2009 – After April 2009 – 12 ECs have been awarded – After April 2009 – 10 proposals are awaiting EC – 22 proposals have been granted terms of references (TORs) – EC is eminent – 3 proposals are awaiting grant of TOR – No asbestos Industry project has so far been denied Environmental Clearance – As per clearance letter “stack emission of asbestos fibre should not exceed the emission limit of 0.2 fiber/cc. Asbestos fibre in work zone environment shall be maintained within 0.1 fibre/cc.” – In the last 12 months, 5 factories have been cleared to be set up – No project has so far been denied permission to be set up Example of an EC Clearance process – Project No: J-11011/418/2009-IA.II(I) – Project Name: Proposed New Asbestos Cement sheet Manufacturing Unit – Proponent: M/s Nibhi Industries Private Limited – Village / District: Meghnagar, Jhabua, State: Madhya Pradesh – Capacity: 100,000 MTPA (Metric tons per Annum) – Date of Receipt of application for obtaining Terms of Reference – June 30, 2009 – Date of Award of TOR – September 7, 2009 – Date of Consideration for EC – Oct 26, 2009 – Date of Final EC - Nov 26, 2009 – The Entire process took only 5 months.

§6. Legal Battles

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Ministry of Environment and Forest, vide Notification dated 13.10.1998, under Sections 3 (1) and 6 (2) (d) of Environment (Protection) Act, 1986 and Rule 13 of Environment (Protection) Rules, 1986, also prohibits the imports of waste asbestos (dust and fibre), being a hazardous waste detrimental to human health and environment.

6. Legal Battles In 1996, the Supreme Court of India in Public Interest Litigation directed that4 : 1. All the Industries are directed to maintain and keep maintaining the health record of every worker up to a minimum period of 40 years from the beginning of the employment or 15 years after retirement or cessation of the employment whichever is later; 2. The Membrane Filter test, to detect asbestos fibre should be adopted by all the factories or establishments at par with the Metalliferrous Mines Regulations, 1961; and Vienna Convention and rules issued thereunder; 3. All the factories whether covered by the Employees State Insurance Act or Workmen’s Compensation Act or otherwise are directed to compulsorily insure health coverage to every worker; 4. The Union and the State Governments are directed to review the standards of permissible exposure limit value of fibre/cc in tune with the international standards reducing the permissible content as prayed in the writ petition referred to at the beginning. The review shall be continued after every 10 years and also as and when the I.L.O. gives directions in this behalf consistent with its recommendations or any conventions; 5. The Union and all the State Governments are directed to consider inclusion of such of those small scale factory or factories or industries to protect health hazards of the worker engaged in the manufacture of asbestos or its ancillary produce; 6. The appropriate inspector of factories in particular of the State of Gujarat, is directed to send all the workers, examined by the concerned ESI hospital, for re-examination by the National Institute of Occupational Health to detect whether all or any of them are suﬀering from asbestosis. In case of the positive finding that all or any of them are suﬀering from the occupational health hazards, each such worker shall be entitled to compensation in a sum of rupees one lakh payable by the concerned 4

Supreme Court of India, order dated 27-01-1995.

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14. Asbestos in India : Struggles and Realities – M. Gupta factory or industry or establishment within a period of three months from the date of certification by the National Institute of Occupational Health.

The Kerala State Human Rights Commission has ordered that asbestos roofing in the school building are avoided in future and the existing school building roofed with asbestos sheets are also renovated by removing the asbestos sheets and replaced with country tiles5 . The renovation of school buildings was supposed to be done in a time bound manner but considering the fact that during the hearing itself despite 13 reminders to the Principal Secretary, General Education Department, no report was submitted by the Kerala Government to the Human Rights Commission, no action has been taken on the order of the commission and the asbestos in the roofs still continue to pose a danger to the health of children.

7. Problems and Challenges There are many problems and challenges to overcome to improve the current situation and move towards an eventual ban. Asbestos Cement Products Manufacturing Association (ACPMA) is a potent lobby. In India, asbestos products carry no health warnings, and trade unions have no mandate to prevent asbestos-related diseases at workplaces. Although researchers around the world have linked lung cancer and other diseases with exposure to the widely used white (Chrysotile) asbestos, the powerful ACPMA — funded by 12 companies concedes nothing. Mr John Nicodemus, the ACPMA’s executive director argues “That lung cancer deaths have been caused by asbestos fibre has not been proved in India”. Senior government sources say that ACPMA has received $ 50 million since its founding in 1985. President of an asbestos company aﬃliated to the association stated that ACPMA members contribute two to three percent of their revenue to the lobby group for “promotional activities in India that advertise promotions to counter baseless allegations by anti-asbestos activists and legal and promotional activities that are mostly in rural India.” This means that at current exchange rates, the ACPMA receives about $ 8 million to $13 million per year6 . Most of the workers are in unorganized sector or contract workers. These workers are mostly migratory and are diﬃcult to identify and track. Labour laws are tedious and compensation claims can take years to settle. Government regulation about asbestos exposure is lax. Factory owners often don’t 5

Order of Kerala State Human Rights Commission dated 31-1-2009. http://www.bloomberg.com/news/2011-06-07/-slow-poison-chokes-indian-workersfeeding-7-slum-roof-demand.html 6

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ensure that pollutant levels are below regulatory limits and inspections are infrequent. While workers receive regular medical check-ups by a companyapproved doctor, the reports aren’t routinely given to employees, who may not be informed that that they are suffering from an occupational disease. The victims in India remain invisible due to misdiagnosis and non-reporting of data to the concerned officials. Victims are mis-diagnosed due to lack of expertise and inability of physician to co-relate with the occupational history. Workers more often than not do not have identity cards making it difficult to file compensation claims. More than 6000 workers in India suffer from asbestosis and 600 from asbestos related cancers7 . The Occupational Health and Safety Centre in Mumbai has examined 473 workers of an asbestos textile factory and out of these 133 were found to be suffering from ARD. In Ahmedabad, Gujarat, Occupational Health and Safety Association found 87 workers and 3 citizens to be suffering from ARD. A study by two Delhi researchers suggests that by 2020, deaths from asbestos-related cancers could reach one million in developing countries8 . Tata Cancer Hospital has reported only 107 cases of mesothelioma in 20 years. Ahmedabad Civil Hospital has detected 41 cases. 16 cases have been reported by NIOH from Alang ship breaking yard. 20 cases from Gujarat Composite Ltd have been certified by Doctors like Dr Arthur Frank, Dr V Murlidhar, but doctors in the Employee State Insurance Corporation refuse to accept these certificates or diagnose the workers as suffering from asbestos related disorders. 18 cases confirmed among ex-miners in Rajasthan by NIOH in a repeat of a medical camp conducted. The medical camp was conducted again as NIOH had lost the papers and reports of the medical camp conducted earlier and only because the workers and villagers protested outside the gates of NIOH and sustained pressure was built. More reports are still being handed over to the workers through district government officials and this figure of 18 will rise. To further complicate the existing asbestos environment in the country, no asbestos was used during elaborate construction related to Common wealth games in 2010. Indian railways has been removing asbestos roof sheets from its stations although the reason cited is modernisation. The removal is being done in unscientific ways and perhaps will cause more harm than good. 7 8

India’s Asbestos Time Bomb (IBAS, 2009). http://archive.tehelka.com/story main46.asp?filename=Cr070810banned.asp

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Roro Hills, chrysotile mine, abandoned in 1983 by Hyderabad Asbestos Cement Products Ltd

This is a photo of the asbestos hills at Roro village at Chaibasa, West Singhbhum, Jharkhand. Even today, as per law, especially as per section 22 of the Air (Prevention and Control of Pollution) Act 1981, all asbestos mines have to be closed scientifically. But Hyderabad Industry Limited, part of the CK Birla Group, did not close this mine. As a result, the asbestos fibres that are blown into the wind, that seep into the fields and rivers, still exist 30 years after the mines shut down. Villagers recall their neighbours and friends who worked in the mines and suďŹ€ered an early death. Some villagers who did not even work in the mines have been reported dead due to lung disease. In a medical camp held earlier out of 120 workers examined, 25 were found suďŹ€ering from asbestos related disorders. Seven of these were victims due to environmental exposure to asbestos fibres.

8. National Program to Eliminate Asbestos Under the 12th five year plan applicable from the year 2012 to 2017, the Ministry of Labour and Employment has formulated a National program on identification, elimination and control of asbestosis in India. Though we welcome the scheme and hope for positive results, however, the justification of the scheme is stated as consequences of the writ petitions and subsequent judgements. The scheme is still not made due to the severe health hazards of asbestos fibres as was used to enforce a ban on mining activities. The primary objectives of this scheme are to access the prevalence of asbestos related disorders and creating a database on mortality and morbidity. According to the Ministry document, in large scale units prevalence of ARDs has been observed on a lower side of 46/1000 exposed workmen. Do they think 46 is a low number out of 1000? No data is available for small and medium scale industries. There is no mention about safe disposal of asbestos waste or safe removal of asbestos during dismantling or renovation. No feedback or inputs were

§9. Successes

185

taken by the civil society and activists involved in the fight against asbestos in formulation of this scheme. There are no areas in the scheme where collaboration with NGOs is likely. So on one hand, we have the National Program to eliminate asbestosis and on the other, more and more companies are getting permission to setup asbestos product factories. The Government admits to lapses and failures in implementation of legislatures and strategies, but there is no strengthening of mechanisms using which this can be remedied.

Asbestos-cement roof; child and a heap of asbestos-cement wastes

The motto of the government and industry still seems to be that asbestos can be “safely used”. The government seems to make diﬀerent noises with diﬀerent audiences. With international audience, there are talks about possible ban on mining and use of asbestos, but actions on the ground leave a lot to be desired. We have industry where some companies are manufacturing both asbestos and non-asbestos products and one company even designing and developing an alternate synthetic fibre, though the research and safety data of this man-made fibre needs to be studied further but still the government-industry nexus remains adamant regarding “safe use”. If asbestos can be safely used and there are no victims in India, what is the requirement of the National Program to eliminate something which is not present?

9. Successes However, some substantial battles have been won in recent times. • A subsidiary of Turner and Newall in Mumbai, Hindustan Ferodo later renamed as Hindustan composites ltd used to manufacture asbestos brake linings, textiles and other products. The plant was closed in 2005. In 2001, the liabilities for personal injuries through asbestos exposure in

186

•

• • • • •

• •

14. Asbestos in India : Struggles and Realities – M. Gupta Turner and Newall was transferred to a special UK trust fund. Since Jan 2010, 400 cases have been filed in the trust resulting in a compensation of about USD 3.5 million. More cases are in the process of filing. Some of the same victims have also filed compensation claims as per Indian compensation laws. Those cases filed in 2004 are still pending National Institute of Occupational Health (NIOH) witnessed the anger of people when the villagers and ex-asbestos miners from Rajasthan sat on a protest outside their headquarters and demanded their medical reports from a study conducted in the region. After many assurances and delays, finally NIOH admitted that the reports have been lost. They promised to conduct another medical camp. After sustained pressure the camp was organised and so far 18 workers have been certified as suﬀering from ARDs. More reports are due and the number will rise. A few workers from thermal power plants and asbestos manufacturing plants in Gujarat received compensation after a lengthy legal battle in court. Spouses and other family members in Ahmedabad and Mumbai have been found having ARDs. A recent Ministry of Labour document stated the intention of the government of India to ban on use of asbestos? – whether it is another propaganda material for international audience has to be determined. Introduction of National Program on identification & elimination of asbestosis. Though the scheme has still not been cleared by the planning commission, the program should bring change on the ground. The anger of the villagers and residents in Odisha on the government inaction resulted in a road blockade of an asbestos cement plant bringing the production to a grinding halt. The plant was running with connivance of the authorities despite the clearance being cancelled earlier In Bihar, the villagers inspired by the school text books are fighting against setting up of asbestos cement plants in various areas. The chief minister has assured to look into the grievances of the villagers. National trade unions are recognizing the hazards of asbestos and many aﬃliate unions of BWI and IndustriAll are demanding a ban on asbestos.

10. Conclusion The apparent demand of asbestos is estimated to be 393 thousand tons by 2011-12 and 605 thousand tons by 2016-17 with 9% growth rate as per the Report of the Working Group for 12th Plan. The lessons learned by richer nations like the U.K. and Germany, which banned asbestos in factories decades ago, are slow to take hold in India, where demand for a sturdy material to make roofs for millions of slum-dwellers serving the world’s second fastestgrowing major economy has overpowered concerns about worker safety India

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187

faces a “looming time bomb” of serious health problems in workers because companies aren’t penalized for compromising on employee safety and most doctors don’t know how to diagnose occupational diseases. The government needs to urgently get its act together and immediately ban use of all forms of asbestos to prevent a silent Bhopal Disaster which is waiting to happen. There is an immediate need to identify all victims of asbestos related disorders and provide medical treatment, rehabilitation and compensation and ensure that the culprits and capitalists who have earned huge profits while endangering lives of innocent workers are brought to justice

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Gallery – Asbestos in India

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189

11. Appendix : Case Studies 11.1.Some industries 11.1.1. Gujarat Composite Ltd Shree Digvijay Cement (SDCL) started commercial production of cement in 1949. The cement is marketed under the trade name ‘Lotus’. A plant to manufacture asbestos cement pipes and a sheets plant was commissioned in Nov.’62, with Johns Manville Corporation, US, being the technical consultant and the sole selling agent in West Asian and African countries. SDCL approved a scheme of arrangement for transfer of four of its division’s viz. Ahmedabad Cement Mill fiber products division, Shreeram Silk division and Coir & Felt division and investment in shares in Shree Synthetics and Fort William Company to Gujarat Composites with eﬀect from 1 Jul.’94. In 2006, Gujarat Composites Ltd Company was divided into two companies namely Apurva Vinimay Ltd and Infrastructure Ltd. Currently the company manufactures cement pipes, corrugated cement sheets, pressure pipes, fitting sheets, fibre pipes.

There are 357 permanent workers in the 2 companies. Among the contract workers the division is as below 1) Apporva Vinimay – 461 workers 2) Infrastructure Pvt Ltd – 274 workers 3) Other Contract workers – 58 workers The total number of workers (temporary and permanent) in both the divisions is 1150. In 1986, National Institute of Occupational Health found 12 workers out of 20 to be suﬀering from asbestosis.

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In 2003, OSHA and Kalyaneshwari organized a medical camp and survey of 203 workers out of which 62 workers were found to be suffering from asbestosis. All X-rays were read by Dr S R Kamath in Mumbai. Out of the 62 workers 20 have died. So far none of the diagnosed workers have been compensated under the Employee State Insurance Scheme (ESI). In the year 1995, Supreme Court of India gave a landmark judgement for asbestos industry ordering compensation of INR 1 lakh, maintenance of medical records, regular medical check-up etc. However none of the guidelines issued by the court are being implemented by the company. Factory inspections are also not carried in a proper manner. The environment around the factory is especially bad and one can see numerous families living under asbestos sheet roofs which have deteriorated over the period. Children can be seen playing with broken asbestos material pieces. The asbestos used is imported from Canada, Russia, Brazil, Khyrgyztan, Zimbabwe. Import from Canada has stopped effective July 2010 as per unofficial sources. Asbestos bags : Kostanai Minerals (Kazakhstan), LAB (Canada), Ural Asbest (Russia), SAMA (Brazill)

In a RTI filed with the Gujarat Cancer Research hospital for cases of mesothelioma and asbestosis in the last 10 years, the following data was provided 1.

Pleural Mesothelioma – 39 cases

Peritoneal Mesothelioma – 3 cases

Pericardial Mesothelioma – 0 cases

There was no case of asbestosis. The hospital refused to provide details about the patients or the places where they worked. 11.1.2. The Hindustan Ferodo Limited Asbestosis Claim9 Hindustan Ferodo Limited (formerly known as Asbestos, Magnesium and Friction Materials Limited) was a company based in Ghatkopar, Mumbai 9

Excerpted from the article by Krishnendu Mukherjee Barrister and Advocate.

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since 1956, producing brake linings, textiles and other products, from mainly chryostile (white) asbestos imported from Canada and Russia. Up and till 1993, it was a subsidiary of the British company Turner and Newall Limited (T&N), at one time the biggest producer of asbestos products in the world. In 1993, Hindustan Ferodo Limited was sold to the Indian Rasoi Group and became Hindustan Composites Limited (HCL). The Ghatkopar factory was closed in 2005. Despite T&N being aware of the harmful effects of exposure to asbestos dust since 1930 with the publication of the Merewether and Price Report, there remained an unacceptable level of dust in the Ghatkopar factory, without any adequate protection measures being implemented by the company. A Report of a visit in November 1975 by Dr HC Lewinshon, T&N’s chief medical officer, records the following: “Hand brushes and brooms need to be replaced by industrial vacuum cleaners . . . Dust levels are high in carding and spinning although I was not given any precise details. A dust monitoring programme is being organised by Dr Ramaswamy who has been trained by Dr Holmes atTBARochdale . . . Adequate medical records do not exist as such and it is only recently that a planned programme of medical screening has been introduced. Because of the lack of registration facilities for births, marriages and deaths, the retrospective and prospective follow-up of asbestos workers cannot be achieved. Until India’s population is stabilised and national records for statistical analysis becomes available, occupational health preventative measures based on epidemiological studies cannot be contemplated ”. Therefore, T&N did not implement adequate preventative measures at its Ghatkopar factory because there had been no study on the harmful effects of asbestos on workers in India, notwithstanding the fact that there had been such studies done in the UK in the intervening half a century. The anecdotal evidence of the workers indicates that the conditions deteriorated once the factory came under Indian ownership. It will come as no surprise to learn that the prevailing conditions at the factory has lead to asbestosrelated illnesses amongst its formers workers. A 2004 study of workers at the factory has revealed over 42 workers with asbestosis or lung cancer. Subsequent studies on former workers have revealed another infected 100 workers, including two wives of former sweepers at the factory who had contracted asbestosis through washing their husband’s dust covered work clothes. However, the number is inconceivably low, due to the fact that many of the workers were not documented or were sacked once they had difficulties in working. Following the administration of T&N in 2001, its liabilities for personal injury through asbestos exposure, was transferred to a special UK Trust Fund. So far, 244 claims have been submitted, and new claims are being

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submitted as they arise. This will be the largest single claim for asbestosrelated illness in India. It is hoped that when the former workers finally get some compensation in a few months time, it will encourage many more workers to make claims against their current or former employers for injury caused by exposure to asbestos at work. 11.2.Some victims 11.2.1. Subrayan Ramaswamy Gondar Subrayan Ramaswamy Gondar Address : Labour Colony Number 17 East Digvijay Nagar, Khali Village, Ahmedabad, India ESI Number â€“ 37/110768 Employer : Gujarat Composit Cement Ltd Date of Death - 9-7-2010 Subrayan Started work in Gujarat Composit Cement Ltd on 1 March 1974. His routine job involved manually opening the plastic Asbestos Bag (Capacity 50 KG) and to put the asbestos in the mixing machine. He started experiencing breathing problems in 1995. He underwant a medical check-up through the ESI Panel Doctor who diagonsed the problem as TB and started his medication. The company closed down in 1995 but restarted its operations in 1999 where in Subrayan was placed in the sheet cutting division. He worked till 2005 when the company because of his deterioting health condition compelled him to take voluntary retirement. He then vacated his home in East Digvijat Nagar and shifted to Meghani Nagar. During his entire career in the company, he was never told about the hazards of the substance he was working with nor was he provided with a correct medical diagonosis and treatment.

§11. Appendix : Case Studies

193 He experienced many diﬃculties in his new place. He did not have any income or job. The family used to survive on the money recevied through the pension fund and his wife used to do manual work in near by homes and earn about Rs 1000 per month (18 dollars) per month.

In July 2007 his health deteriorated and was admitted in the civil hospital. However there was no improvement in his condition and his case was referred to the Gujarat Cancer Research Institute on 13-8-2009. The cost of treatment here was very high. Due to lack of money, an application was filed with the local MLA Shri Pradeep Singh Jadeja for help. This was forwarded on 27-8-2009 to the Director Gujarat Cancer research Institute and hence the treatment started. After about a year, on 9-7-2010, he died leaving behind his mother (68 years), wife (43 years old), Daughter (16 years – had to leave studies after matriculation), 2 sons (elder 14 years – had to leave studies after 9 class, younger 11 years – studies in 6th class) . Today his wife and elder son run a food stall, they sell food to diﬀerent area to earn their livelihood and support the family. 11.2.2. Murgesan Periyan

Murgesan Periyan Employer : Gujarat Composit Cement Ltd Joining date – 10-3-1972 ESI Number– 37/1103612 Section – Fiber Product Division Murgesan was a labourer in the company. He was suffering with breathing difficulties and used to take medication for TB. OSHA and Kalyaneshwari did a medical survey in 2003/2004 and Dr S R Kamath certified him to be suffering from grade 2/2 asbestosis. However, ESI Corporation did not give him compensation based on this certificate. To avail compensation again on 6-6-2006, another X-Ray was taken and Dr V Murlidhar certified asbestosis and also said that cancer is suspected. In 2009, when his health condition

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deteriorated, ESI referred the case to Gujarat Cancer Research Institute and there, he was diagnosed with critical lung cancer. By then, it was too late for treatment and he died on 11-3-2009. He is survived by wife, son, daughter who is married. Son has refused to file compensation claim with the company fearing loss of his own job (he works in the same company handling the same hazardous substance). 11.2.3. Ravindra Ganpat Mohite Ravindra Mohite joined Hindustan Ferrado Ltd factory in Mumbai on 20th September 1973. He started as a casual worker and used to work in multiple departments like textile, brake clutch lining (BCL), mill board, goods received section (GRS), friction goods warehouse (FGW), dispatch, maintenance, compress asbestos fibre (CAF). He became a permanent worker in 1977 and was assigned work in the textile department where he used to work on the framing machine. He got Rs 550/month as salary. Ravindra was promoted as a frame operator in 1980. He cleared the exam for a temporary jobber and became a permanent jobber in the year 1992. During 1985, the plant was visited by superiors from England and a new policy of using wet process was initiated post the visit. The company changed its name to Hindustan Composites Ltd in the year 1993 and the plant finally closed down in 2006. According to him, the company used to conduct regular medical check-ups of the workers but never disclosed any results to the workers. These tests became less regular in the late 90s. Ravindra says that none of the workers were ever informed about the hazards of the material they were working with. They noticed warning labels on the bags but the company officials did not inform about the hazards or about the safety measures to be used while handling asbestos. The work environment used to be very dusty and there were no exhaust systems in place. It was in the year 2004 when Occupational Health and Safety Centre (OHSC) organised a medical camp outside the company gates that the workers became aware of how dangerous asbestos can be. 41 workers suffering from asbestos related disorders (ARD) were found in this camp. One of these workers died almost immediately post diagnosis. 36 of these workers filed a claim for compensation in the year 2005 under the Workmen Compensations Act 1923. The case is still going on in the labour court. The company flatly refuses to accept any exposure claims. Ravi was diagnosed as suffering from asbestosis in the year 2004 during the camp with 50% disability by Dr V Murlidhar. In the year 2008, after meeting barrister Krishnendu Mukherjee, the workers came to know about the trust fund established by Turner and Newall

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(original owner of the company). With his help, the workers filed compensation claims in the trust fund. So far 178 claims have been filed. Compensation has been received for 115 of these claims and the rest is expected very soon. Another 70 claims are being finalised for filing in the trust which involves secondary exposure and claim for a contract worker. Received 12 April 2013 Revised 21 October 2014

Chapter 15

Asbestos in Japan and Asia by Sugio FURUYA and Yeyong CHOI We first review briefly the story of asbestos in Japan and its echo in other Asian countries. The situation is critical in South Eastern Asia : whereas asbestos is now banned in Japan and Korea, other Asian countries like China, India, Indonesia, Thailand, Sri Lanka and Vietnam use today 70% of the two million tons of asbestos produced annually worldwide. In a second part we describe compensation of asbestos victims in Japan and compare the various compensation schemes in Belgium, France, Japan, Korea, Netherlands and United Kingdom.

1. Asbestos in Japan – from huge consumption to ban In Japan, import of asbestos and implementation of asbestos factories started in the 1880’s, stopped during the second world war and rose from the end of the fifties till the seventies before declining only at the turn of the century. It is less known that Japan has been mining asbestos throughout twentieth century, although on a relatively small scale. In fact, after a shortage of asbestos during world war two, asbestos imports restarted in 1949, with permission from the Supreme Commander of the Allied Powers, led by General Douglas MacArthur, and free trade of asbestos began in 1963. Asbestos importation increased in the 1960s and 1970s, the period of Japan’s industrial growth. In 1980, annual imports reached a peak at 395,000 tons.

– 197 –

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Importation and mining of asbestos in Japan (source: Year 1930 1940 1950 1960 1970 1975 1980 1985 1990

Imports 10177 25403 6690 77059 298253 253097 395408 261648 287659

Mining 1016 1524 5665 15461 21389 4612 3897 2971 5184

Year 1995 1996 1997 1998 1999 2000 2001 2002 2003

Imports 191475 177869 176021 123225 114951 85440 78304 44550 23459

USGS)

Mining 2399 2269 2254 1389 – – – – –

As in most countries, asbestos was mainly used in building materials, in fact more than 90% of the asbestos used in Japan has been processed in the building trade. Unfortunately this indiscriminate use has resulted in a large burden of diseases and deaths. It also provides a burden of problems with the huge amount of asbestos installed in buildings – problems that are amplified by tragedies like typhoons and tsunami. According to the Ministry of Health, Labour and Welfare, the annual number of deaths due to mesothelioma in Japan rose from 500 to 772 between 1995 and 2001, as recorded in the following table. Mesothelioma mortality in Japan (1995–2001) Year Males Females Total

1995 356 144 500

1996 420 156 576

1997 451 146 597

1998 429 141 570

1999 489 158 647

2000 537 173 710

2001 574 198 772

The steady increase of mesothelioma mortality in Japan went on as is shown in the diagram next page. Awareness of the hazards has been very slow to arise. The first step was prohibiting asbestos spray in 1975 by an amendment of Ordinance on Prevention of Hazards due to Specified Chemical Substances. In 1995, manufacture, import, supply, and use of crocidolite and amosite and products containing these types of asbestos were prohibited by an amendment of Enforcement Ordinance of Industrial Safety. A ban on asbestos in Japan – and in particular on chrysotile asbestos – was finally announced by Chikara Sakaguchi in 2003. In fact some derogations ran until 2012, year when a total ban was achieved. The change of policies from huge consumption to ban of asbestos was achieved through

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extensive eﬀorts of groups prominent in the eﬀort to establish public health priorities and include the Japan Occupational Safety and Health Resource Center (JOSHRC) and the Ban Asbestos Network Japan (BANJAN). Mesothelioma mortality in Japan (1995–2100)

Several scandals forced awareness of authorities concerning the asbestos problem. The first scandal perhaps was when many asbestos victims were identified in 1982 in Yokosuka – the site of a U.S. naval base and shipyards in the Kanawaga district. A survey conducted by doctors in the Yokosuka Kyosai Hospital revealed that one third of 39 deaths from lung cancer in the preceding five years had resulted from asbestos exposures and had been mainly naval and shipyard workers. In 1986, when a major repair job on the aircraft carrier Midway was carried out at the U.S. Navy’s Yokosuka Base, a large amount of asbestos wastes was produced and illegally disposed of. This scandal was disclosed by Kanagawa Occupational Safety and Health Center (KOSHC). The incident elicited social concern and sparked mass removal of sprayed asbestos in school buildings, known as the “school panic,” during 1987 and 1988. The series of incidents helped increase awareness of the asbestos issue among Japanese people. However a pivotal moment was the discovery of massive pollution, ecological disaster with a large number of mesotheliomas within and in the neighbourhood of an asbestos plant, the Kubota plant.

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2. The Kubota plant shock When a newspaper disclosed on 29 June, 2005, that many workers had died of asbestos-related diseases at the former Kanzaki plant (Amagasaki City, Hyogo Prefecture) of the Kubota Corporation, a major machinery maker, the public felt that vital information on asbestos impact had been concealed from them for long years. The number of cumulative deaths was 74 from Kubota workers – increased up to 105 as of March 31, 2006 and up to 141 as of March 2009; this is more than 10% of all workers - and 4 more from workers of its subcontracting companies. The former Kubota plant

This plant imported large quantities of asbestos and manufactured asbestos cement water pipes made with crocidolite and chrysotile from 1954 to 1975, and asbestos housing materials (mainly roofing and outer wall) containing only chrysotile from 1960 to 2001. The 2005 newspaper article conveyed the additional striking fact that the deadly product was propagated outside the plant – by 2005 further five more residents living or having lived within one kilometer from the factory suﬀered from mesothelioma and two of them had already died. All of them had no occupational asbestos exposure history and their diseases were assumed to be due to environmental (neighbourhood) exposure to asbestos which leaked from the factory in the past. Company oﬃcial said that the company was considering paying some consolation money to the victims. The discovery of this tragedy raised the public concern on possible asbestos impact upon not only workers but also communities as a whole.

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Asbestos comsumption at the Kubota plant (1955–1995)

The number of mesothelioma cases suspected due to neighborhood exposure to asbestos used at the Kubota Kanzaki factory has been increasing; by June 2012 the toll had reach over two hundred. Kubota plant asbestos related deaths – occupational / environmental Age

ARD deaths among workers (March 31, 2009)

<39 40–49 50-54 55-59 60-64 65-69 70-74 75-79 >80 Total

5 9 19 28 34 22 18 6 141

Mesothelioma deaths among residents

Male 5 16 12 18 14 16 22 6 8 117

Female 1 6 10 16 14 15 20 13 13 108

Total 6 22 22 34 28 31 42 19 21 225

Japanese society just had to face the true legacy of asbestos at the first time – the impact was such that the name “Kubota shock” was used to describe reaction of society and authorities. All media followed this story and has been intensively covering asbestos issues every day. In a twinkling,

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“mesothelioma” - a very rare cancer inseparably linked to asbestos exposure became one of most well-known disease to the public. Everybody argued that the real extent of asbestos hazards should be revealed. Announcement of a ban on all types of asbestos soon followed. Alas the lessons learned in Japan are yet to propagate in most other Asian countries.

3. The dramatic situation in Asia As we saw Japan was one of the world biggest consumer of asbestos during the second half of twentieth century. Unfortunately Asia has become during that period the favourite target of asbestos merchants. In fact today more than 70% of the two millions tons of asbestos produced worldwide annually is used in the most populated countries of South-East Asia : China, India, Indonesia, Thailand, Sri Lanka and Vietnam (around 20% in Russia and its neighbour countries, 10% in South America mainly in Brazil). Among these countries the only large producer and largest consumer is China. The list of countries in this region having banned asbestos is the following. – 1989 : Singapore – prohibition of importation of raw asbestos. – 2004 : Japan – ban on asbestos (complete in 2012), Industrial Safety and Health Act – 2009 : South Korea – ban with few exceptions, Industrial Safety and Health Act This list is short, nevertheless several countries have started plans to diminish or stop asbestos use: – 2008 : Taiwan banned asbestos in the manufacture of panels, pipes and some asbestos cements products. Further products were banned in 2010 though a complete ban is still not eﬀective; in 2011, the Environnement Protection Agency of Taiwan has announced measures that should lead to stop entirely asbestos use by 20181 . – 2009 : A voluntary phase-out plan was developed in the Philippines, aiming at stopping asbestos use in by 2018. – 2010 : the National Health Assembly of Thailand wrote a resolution, approved by the National Health Council in 20112 . – 2011 : In Hong Kong, the Panel on Environmental Aﬀairs of the Legislative Council Environmental Protection Department proposed to amend the APCO to introduce (a) extending the import and sale ban to all forms of asbestos and (b) ban on supply and new use of asbestos. In 1

Taiwan : EPA Announces Schedule for Full Ban on Asbestos: http://www.epa.gov.tw/FileLink/FileHandler.ashx?file=15632 (document - in English - on the EPA site - in Chinese: http://www.epa.gov.tw/). 2 So far Russian “diplomacy” has thwarted or delayed the public health measures in Thailand.

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2012 Hong Kong started consultations, under the Air Pollution Control Ordinance. – 2011 : the city of Purwakarta (Indonesia,West Java) decided to prohibit the establishment of industries that use asbestos. Vietnam considered via the APEAD in 2007 a ban that would become eﬀective by 2020; but in view that the Vietnamese government acted on the side of the asbestos industry during the Rotterdam Convention meeting in May 2013, it is doubtful that any progress is to be expected without a drastic change. Laos drafted a regulation that should take full eﬀect in 2020, but its implementation remains unclear. Mongolia, Cambodia, Brunei have taken partial ban measures. In fact the Mongolian Government issued the Resolution No. 192 on July 14, 2010 to prohibit import of all forms of asbestos but the above order was canceled on June 8, 2011. Perhaps the most dramatic situation are to be found in the two most populated countries in the world : India and China. The tragic lack of care for public health in India – the biggest importer of asbestos in the world – is described in Mohit Gupta’s paper (this volume). Despite many warnings3 China – second producer and first consumer of asbestos in the world – continues to exploit dozens of asbestos mines and use indiscriminately asbestos. In 2011 the Chinese mines produced 440 000 tons of asbestos, but this was not enough and China imported 254 000 tons of asbestos, most of it from Russia; taking out the 56 000 tons that was exported, the (apparent) annual consumption amounts to 638 000 tons of asbestos. According to World Asbestos Report on the situation in China4 – “Since 1994, the import and export of crocidolite has been banned; in 2001, the mining of crocidolite was forbidden and in 2002 the use of crocidolite was prohibited in building materials. From October 2003, the use of all types of asbestos was banned in the production of friction materials for the automotive industry. Laws to improve occupational health and safety introduced in 2002 include: the National Law on the Prevention and Control of Occupational Diseases, the Law of Safe Production, the Law Promoting Clean Work and the List of Backward Production Capacity, Technologies and Products (3rd revision). It is unlikely that 3 See for example: South China Morning Post, November 14, 2010, Mainland faces explosive rise in asbestos-related lung disease: http://www.scmp.com/article/730359/mainland-faces-explosive-rise-asbestos-relatedlung-disease and ICIJ, July 21, 2010, Top asbestos user China faces epidemic of cancer : http://www.icij.org/project/dangers-dust/top-asbestos-user-china-faces-epidemic-cancer 4 Killing The Future. Asbestos Use In Asia, Experiences of Asian Countries: China http://worldasbestosreport.org/articles/killing future/China experience.php

204

15. Asbestos in Japan and Asia – S. Furuya, Y. Choi these regulations are being enforced judging by long-standing failings of the health and safety inspectorate which is plagued by understaﬃng, poor technical capacity, and wide-spread corruption.”

In most of these countries there is no systematic register of cancers and the available epidemiological data are scarce. Nevertheless the fragmentary informations are often enough to know that the use of asbestos has terrible eﬀects. Consider for example the diagram depicting the location of the main asbestos industries in China (mining and processing products) and comparing them with the location were most cases of asbestosis and pleural mesothelioma are found. Distribution of asbestos industries and diseases in China5

Groups of asbestos victims exist in Japan, Korea and India. Occupational victims groups in Hong-Kong and Taiwan are supporting asbestos victims. NGO aiming at stopping use of asbestos are active in India (Occupational and Environmental Health Network India, OEHNI), Hong Kong (No More Asbestos in Hong Kong Alliance), Indonesia (Indonesia Ban Asbestos Network, Ina-BAN), Malaysia (Malaysia Ban Asbestos Network, M-BAN), and Thailand (Thailand Ban Asbestos Network, T-BAN); they receive the support of organizations from Japan (Ban Asbestos Network Japan, BANJAN), 5

From a presentation of Dr. Li Tao, Institute of Occupational Health and Poison Control, Chinese Center for Disease Prevention and Control (CDC), China, at an international asbestos conference on December 4, 2010 in Kyoto, Japan

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Korea (Ban Asbestos Network Korea, BANKO) and are regrouped within the Asian Ban Asbestos Network (A-BAN) in 2009.

4. Compensation of asbestos victims in Japan Among asbestos factory workers in Japan, the first asbestosis case was reported in 1927; the first asbestos-related lung cancer case, in an asbestos textile factory, in 1960, the first peritoneal mesothelioma case in 1973, and the first pleural mesothelioma case in 1974 [Morinaga et al 2002]. 4.1. Worker’s Accident Compensation Insurance If a victim suﬀers asbestos-related disease due to occupational asbestos exposure, he or she can receive benefits from the Worker’s Accident Compensation Insurance Scheme, provided the claim is issued within five years. In Japan the national list of occupational diseases is set up as an annex to the Labour Standards Law, which was enacted in 1947. Pneumoconiosis was included in the list from the beginning, but asbestos-related cancer was not. In 1960, the Pneumoconiosis Law was enacted. The Law lists dusty trades which are likely to put workers at risk of pneumoconiosis and in particular “work at a site of operations involving unraveling, compounding, spinning, weaving, spraying, loading or unloading of asbestos, or placing one asbestos product upon another or stitching up, cutting, grinding, finishing or packing of asbestos products.” In 1978, asbestos-related lung cancer and mesothelioma were included in the national list of occupational diseases, and Recognition Standards for workers compensation of asbestos–related diseases (asbestosis, lung cancer, and mesothelioma) were set up by Ministry of Labour. The current standards in Japan for recognition of an asbestos-related occupational disease are summarized in Table 1. Basically, these standards cover all types of “asbestos exposed work” which includes work that was not covered by Pneumoconiosis Law. With these standards, it should be noted that, in Japan, that a lung cancer case without asbestosis also may be compensated. Compensated cases of asbestos-related lung cancer and mesothelioma numbered fewer than 10 before 1984, 10–19 in 1985–1991, 20–29 in 1992–1997, 42 in 1998 and 1999, and 52 in 2000. The rapid increase has occurred in recent years.

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15. Asbestos in Japan and Asia â€“ S. Furuya, Y. Choi Annual number of lung cancer not compensated in Japan (1994â€“2010)

Workers compensation and mesothelioma mortality (Japan 1994â€“2010)

Figures for asbestosis are not available, and the data for pneumoconiosis include asbestosis. Every year more than 1,000 pneumoconiosis victims newly receive compensation. Currently, about 18,000 pneumoconiosis victims are receiving compensation.

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Table 1. Recognition Standards for Asbestos-related diseases A. Asbestosis Applies to those who satisfy conditions 1 and 2a or 1 and 2b 1. 2a.

exposed to asbestos in his/her work at present or in the past have pneumoconiosis (asbestosis) classified as Grade 4 (most severe pneumoconiosis, and the patient needs to be under treatment) 2b. have pneumoconiosis (asbestosis) classified as Grade 2 or 3 (patient has clinical findings of pneumoconiosis), with a complication (pulmonary tuberculosis, tuberculous pleurisy, secondary bronchitis, secondary bronchiectasis, or secondary pneumothorax) B. Lung cancer Applies to those who have lung cancer with condition 1, 2, 3, or 4 1. 2.

asbestosis (on chest X-ray film) non-asbestosis (on chest X-ray film), with more than ten years of occupational asbestos exposure history, and with clinical findings such as continuous inspiratory fine crackles at lung bottom when he/she breathes in, pleural plaque or pleural calcification on chest X-ray film, or asbestos bodies in sputum non-asbestosis (on chest X-ray film), with more than ten years of occupational asbestos exposure history, and with pathologic findings obtained from TBLB (transbronchial lung biopsy), open lung biopsy, autopsy, etc., such as diﬀuse fibrous proliferation, pleural plaque, pleural calcification, asbestos fibers, or asbestos bodies in lung tissue none of the above, but the patient has a history of relatively short, or intermittent temporary, high-concentration exposure to asbestos; the Ministry of Labor examines each case to determine whether the disease is occupational in origin

C. Mesothelioma Applies to those who satisfy condition 1, 2, or 3 1.

have pleural or peritoneal mesothelioma with more than five years of occupational asbestos exposure history, with asbestosis (on chest X-ray film) have pleural or peritoneal mesothelioma with more than five years of occupational asbestos exposure history, with pathologic findings obtained from autopsy, etc., such as diﬀuse fibrous proliferation, pleural plaque, pleural calcification, or asbestos fibers or asbestos bodies in lung tissue none of the above, but the patient has pleural, peritoneal, pericardial, or other mesothelioma, or diagnosis is diﬃcult; the Ministry of Labor examines each case to determine whether the disease is occupational in origin

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4.2.Asbestos Victims Relief Law After the “Kubota shock”, it soon became clear that the compensation system for occupational diseases was insufficient and the authorities responded in 2006 by enacting the “Asbestos Victims Relief Law ” which was issued February 10 and took effect on March 27, 2006. The aims of the law was first to cover asbestos victims not compensated by the workers insurance, this meant essentially four categories of victims: a) Victims of environmental (neighbourhood) exposures; b) Victims of domestic exposures; c) Occupational exposure victims who either were self-employed workers or haven’t taken out the workers’ compensation insurance by paying special premium by themselves; d) General exposure victims, due to unspecific or unidentified sources. The scheme included as compensable diseases mesothelioma, lung cancer and asbestosis6 . The compensation includes, for victims who fell ill or died after the publication of the law (March 2006): i) medical expenses not covered by national healthcare insurance; ii) “medical treatment benefit” for an amount of 103,870 yen7 per month for the victim; iii) funeral expenditure 199,000 yen as a lump sum; iv) “relief benefit adjustment allowance” which equals the difference between 2,800,000 yen and the total amount of paid medical expenses and medical treatment benefits to the bereaved family after the victim died. For victims who fell ill or died before the publication of the law (March 2006) i) “special survivors condolence allowance” of 2,800,000 yen for the bereaved family; ii) special funeral expenditure of 199,000 yen. The Asbestos Victims Relief Fund was established within the Environmental Restauration and Conservation Agency, and the costs of the fund shared as follows. The amount of the cost is presumed to be 9 billion yen each year beginning fiscal year 2007. The national government expends 38.8 billion yen from fiscal year 2005 supplementary budget to contribute to the fund and to be used for administrative costs for establishing the fund. From fiscal year 2007 onward, it will pay half of the administrative costs. Employers have contributed to costs since fiscal year 2007 with two types of contributions : 6

In 2010, pleural thickening, with extreme disability of respiratory functions, was added. 7 Approximate conversion : 1000 yens ⇠ = 7 euros ⇠ = 9.5 US dollars.

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i) A general contribution, based on an idea that all employers have benefited economically from the use of asbestos, hence all employers are to share the cost of relief. The contribution amount is calculated by multiplying the wage bill by certain rates. The contribution is treated separately from the workers’ compensation insurance premium, but the latter system is used to collect the contribution. ii) A special contribution, for employers deeply related to asbestos (conditions estimated though asbestos usage, incidence of designated diseases, etc.) who will be required to pay additional contribution on top of the general contribution. The fund also aims at compensating bereaved families of workers who had died of asbestos-related diseases before 2001, and whose rights to receive benefits from Workers’ Compensation Insurance had been extinct since those 5-year status of limitations expired. The compensable disease list is : a) mesothelioma b) lung cancer c) asbestosis d) diffuse pleural thickening e) benign asbestos pleural effusion. The benefits include: i) Special survivors pension from 2,400,000 (one dependent) to 3,300,000 (four dependents or more) yen of pension, according to the number of eligible dependents and other factors. ii) Special survivors lump-sum allowance of 12,000,000 yen, when there is no member eligible to receive special survivor pension, or the difference between 12,000,000 yen and total amount of paid special survivor pension, when the total amount of paid pension was less than 12,000,000 yen as of when all eligible dependents have lost their rights to receive pension. The law is enforced by Labour Standards Inspection Office (Ministry of Health, Labour and Welfare) and costs are paid out from the Workers’ Compensation Insurance Account. The law also improved workers’ compensation insurance benefits for workers who suffer from asbestos-related diseases and bereaved families of workers who died of asbestos-related diseases. This concerns the following list of diseases : a) mesothelioma b) lung cancer c) asbestosis d) diffuse pleural thickening e) benign asbestos pleural effusion f) other diseases which are apparently caused by work (if proved by the applicant). The benefits consist in: i) Medical compensation benefit covering the amount of necessary medical expenses; ii) Absence compensation benefit and absence special allowance representing total 80% of the average daily wage, as long as medical treatment is needed, and a worker is unable to work and obtain wages due to the

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medical treatment; the absence compensation benefit should be paid, regardless of the length of absence period in principle (even if after the retirement); iii) Survivors compensation benefit and survivors special allowance consisting of a pension representing 153 days (one dependent) to 245 days (four dependents or more) of the average daily wages, according to the number of eligible dependents and other factors, and 3,000,000 yen of lump-sum allowance regardless of the number of dependents; iv) Survivor special lump-sum allowance; v) Funeral Expenses 315,000 yen plus 30 days of the average daily wages or 60 days of the average daily wages. The scheme is enforced by Labour Standards Inspection Oﬃce (Ministry of Health, Labour and Welfare) and financed mainly by premium paid by employers (government subsidy is less than 1%).

5. Comparison of compensation funds for asbestos victims As well known, the heaviest toll of asbestos-related diseases comes from occupational sources, nevertheless workers compensation cannot cover the wide range of asbestos victims: environmental and domestic exposure victims should equally receive relief, as self employees or workers whose employer no longer exists or cannot be found. The tragic condition of victims of asbestos cancer has therefore pushed the authorities of several countries to enforce specific compensation schemes. We briefly compare the system of general compensation for asbestos victims set up by six countries8 : 1) In France, a compensation Fund for Asbestos Victims (Fonds d’indemnisation des Victimes de l’Amiante, FIVA9 ) was established in 2002. It is amply described in Marie-José Voisin’s paper (this volume); 2) In Japan, as we described, an Asbestos Victims Relief Fund (ERCA10 ) was established in 2006 ; 3) In Belgium, a compensation fund (Fonds d’indemnisation des Victimes de l’Amiante, AFA11 ) was also created in 2007; 4) In the Netherlands, theTegemoetkomingNiet-loondienstgerelateerdeSlachtoffers van Mesothelioom, TNS (Institute for Asbestos Victims, IAS12 ) 8 We discuss neither the South African Asbestos Relief Trust – described in Tina da Cruz paper (this volume) – nor the Italian Fund since they are of a quite different nature – see Bruno Pesce’s paper (this volume). 9 Fonds d’indemnisation des Victimes de l’Amiante: http://www.fiva.fr/ 10 Environmental Restoration and Conservation Agency (in Japanese and English), http://www.erca.go.jp/ 11 Asbestfonds, Fonds amiante (in Dutch and French): http://www.fmp-fbz.fgov.be/ 12 Institut Asbestslachtoffers (in Dutch and English) : http://www.asbestslachtoffers.nl/

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was created in 2007. This institution is discussed in Tinka de Bruin’s paper (this volume); 5) In United Kingdom, the Diffuse Mesohelioma Payment scheme was established, in 2008, and completed in 2013 by the Mesothelioma Bill13 . 6) In Korea, an Asbestos Victims Relief Fund14 was established in 2011. The French FIVA compensate all diseases attributed to asbestos exposure (on French territory); in particular it compensates pleural plaques which are automatically attributed to asbestos exposure, and non thoracic cancers (under strict conditions evaluated by a special medical committee). The Japanese and Korean funds compensate mesothelioma, lung cancer and asbestosis, while the Japanese fund also include (since 2010) diffuse pleural thickening. The Belgian fund compensate mesothelioma and asbestosis, whereas the Dutch and British schemes compensate only mesothelioma. Our criticism concerning the Japanese Asbestos Victims Relief Fund are the following : For workers complementary compensation : • The level of relief in the non employee case is far too low in comparison to worker’s compensation insurance benefits; • The coverage of compensable diseases is still insufficient; • The “status of limitation” problem is still not entirely solved (re-extension or elimination of deadline is needed); • The delays of decision of payments are too long, especially for mesothelioma victims. For non occupational victims : • • • • •

Too much burden of proof bears upon the victims and families; Often too strict “probability” of diagnosis is required for mesothelioma; For lung cancer, too strict “medical criteria” are applied; Information about exposure history is too often disregarded; Representatives of victims and families are not involved in administration of relief/compensation scheme.

Many of these criticism apply (with appropriate modifications) to the national schemes with the exception of the French fund, which seems the best model among the six existing compensation funds. An important feature of 13

Department for Work & Pensions, 2008 Diﬀuse Mesothelioma Scheme : www.dwp.gov.uk/other-specialists/compensation-recovery-unit/2008-diﬀuse-mesothelioma/ For the 2013, Mesotheliioma Bill No 100 of Session 2013-14, see: http://www.parliament.uk/briefing-papers/rp13-66.pdf%E2%80%8E 14 A comprehensive description of the Korean fund and the current Korean legislation, including also ban on asbestos and abatement management may be found (in English) at: http://www.yulchon.com/ENG/publication/view.asp?CD=1226&CM=PG1

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the French fund is the fact that representatives of associations of victims are present on the board of the compensation fund. Received 6 January 2014 References 1. Website of Japan Occupational Safety and Health Resource Center, JOSHRC (in Japanese and English): http://www.jca.apc.org/joshrc/ 2. Website of Ban Asbestos in Japan, BANJAN (in Japanese): http://park3.wakwak.com/ banjan/ With some information in English: http://park3.wakwak.com/ banjan/main/torikumi/html/issues.htm 3. S. Furuya, Y. Natori, R. Ikeda, Asbestos in Japan. Int. J. Occup. Environ. Health 2003; 9:260–265. 4. Morinaga K, Yokoyama K. History of asbestos health eﬀects. In: Morinaga K (ed). Occupational asbestos exposure and asbestos related diseases. Tokyo, Japan: Sanshin Tosyo, 2002: 73–98. [In Japanese] 5. Takahashi K., Karjalainen A. A cross-country comparative overview of the asbestos situation in ten Asian countries.15 Int. J. Occup. Environ. Health 2003; 9: 244–48. 6. Choi Y., Lim S., Paek D., Trades of Dangers: A Study of Asbestos Industry Transfer Cases in Asia. American Journal of Industrial medecine 56:335–346 (2013)

15 The ten countries studied are: China, Indonesia, Japan, Korea, Malaysia, Philippines, Singapore, Taiwan, Thailand, and Vietnam.

Chapter 16

Asbestos in Brazil : Controlled use? When and where? by Fernanda GIANNASI

Brazil is currently the third largest producer of asbestos, behind Russia and China, the third biggest exporter behind Russia and Kazakhstan and the third largest consumer, after China and India. This chapter reports the story of asbestos in Brazil, a «sanitary catastrophe that was avoidable»1 and which, unfortunately, continues in Brazil. The figures2 from year 2012 confirm the importance of Brazil in the geopolitics of asbestos, with a production corresponding to 15,4% of global production, almost half of it being exported, mainly towards Asian countries like India, Indonesia and Thailand, and Latin American countries like Mexico and Colombia. Production Import Export Consumption (apparent) 1

306 500 tons 11 932 tons 150 829 tons 167 602 tons

An oﬃcial report from the French Senate, dated October 2005, describes asbestos as

the «biggest sanitary catastrophe of XXth century» and considers that the state, the industry and even unions were guilty for the contamination by this carcinogenic fibre, banned in France in 1997. The report accuses French authorities of having been anesthetized by the asbestos lobby. 2 Source: U.S. Geological Survey (USGS).

– 213 –

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1. Industrial strategies Mining of asbestos in Brazil3 initiated principally with two multinational corporations : the French group BRASILIT S.A. (currently Saint-Gobain do Brasil for industrial products and Ltda - Divisão Brasilit for construction) which succeeded Pont-à-Mousson, and a subsidiary of the Swiss-Belgian conglomerate ETERNIT do Brasil Cimento Amianto S.A. (currently Eternit S.A.). Brasilit was the first to settle in Brazil, after obtaining permit to mine the deposit of São Felix do Amianto in Bom Jesus da Serra (state of Bahia), at the end of the 30s, establishing the company SAMA (full name SAMA S. A. - Minerações Associadas). They stayed there until 1967, when, jointly with ETERNIT, they started the large mine of Cana Brava, near the town of Minaçu, state of Goiás, with a division of shares of 55% for Brasilit and 45% for Eternit. This partnership lasted until 1997, when Eternit S.A. took control of all the activities of asbestos production and also the environmental legacy of the old mine in Bahia.

SAMA’s industrial plant in the 40’s, São Felix do Amianto/Bahia. 3

According to the National Department of Mining Production (DNPM) from the Ministry of Mines and Energy, the states and municipalities with asbestos mines (activated or inactivated) are : Bahia – Itaberaba, Bom Jesus da Serra; Minas Gerais: São Domingos do Prata, Virgolândia, Nova Lima; Goiás – Pontalina, Barro Alto, Minaçu; Alagoas – Jaramataia; São Paulo – Itapira.

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View of SAMA’s industrial plant in the 60’s, São Felix do Amianto/Bahia.

Currently, SAMA is the only company mining chrysotile asbestos in the country, and one of the biggest in the world, as we can see on the pictures below.

Cana Brava mine :

the third largest asbestos mine in the world.

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SAMA’s industrial plant in Minaçu/Goiás

Mine pit and factory of SAMA in Minaçu/Goiás

In total collaboration, the two industrial trusts divided profits from mining (1967-1997) and asbestos-cement factories (1993-2004), through a merged joint venture ETERBRÁS Tecnologia Industrial Ltda (55% Brasilit, 45% Eternit), founded in 1991, after the oﬃcial announcement of the withdrawal of Stephan Schmidheiny4 , heir of the Eternit empire, from trading with asbestos. The merging of the companies, which controlled 55% of the Brazilian market of materials for roofs, was rejected on the basis of anti-trust law, but 4 See the article by Bruno Pesce, this volume, on the Eternit trial in Italy (editor’s note).

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the law was by-passed with the constitution of the new company ETERNIT S/A. On 8th of May 2001, the president, at the time, of Eternit S/A, Élio Martins, in his statement in front of a special commission of the federal house of parliament, who was evaluating the project of law 2186/96 on the «progressive substitution of production and trade of products containing asbestos» explained the composition of shareholders of the company as follows5 : «Eternit is a Brazilian company with open capital, with shares and no controlling shareholder. The main shareholders are DINAMO – a share investment fund (25,17%); Fundo de Pensão from the Central Bank – private social security – CENTRUS (17,49%); Saint-Gobain (Brasilit) with 9,11%; Fundo de Participação Social do BNDES (National Bank of economic and social development) (8,41%); AMINDUS HOLDING AG (6,81%) and Enterprises and Participations HOLPAR (4,31%).» It is interesting to note in this composition, ten years after the official withdrawal from all activities connected with asbestos of magnate Stephan Schmidheiny, that the company AMINDUS HOLDING AG, which belonged to Schmidheiny conglomerate, was still in the list of shareholders of Eternit S. A.6 . In 2004 the Saint-Gobain holding withdrew completely from asbestos trade in Brazil, ending partnership within ETERBRÁS. Since 1999, SaintGobain developped a new technology to substitute asbestos in the making of roofs and water tank, using in the beginning polyvinylalcohol (PVA) and pulp, both imported. In 2003, they chose to substitute PVA fibres for polypropylene (PP), produced in Brazil, after having built their own plant in the town of Jacarei, to produce the synthetic alternative. Nevertheless, the decision of Brasilit to stop using asbestos for fibrocement in Brazil, has been principally triggered by the ban on asbestos in France, effective on 1st January 1997. The ban in France, jointly with the pressure of media and public opinion in France, on the Saint-Gobain shareholders, left the executives of the corporation in a delicate position, accused of promoting a «double standard and double moral», which is a practice currently condemned of using different standards between the mother company and the subsidiaries, in countries more vulnerable socially and envi5

Deposition on 08/05/2001, House of MP’s (in portuguese): www.camara.gov.br/Internet/comissao/index/esp/asbestont080501.pdf 6 Peter Schuermann, spokesperson of Stephan Schmidheiny, responded to a query of the editor of SonntagsBlick: « Stephan Schmidheiny sold all of his shares from Eternit Brazil in 1988, neither him nor any of his holdings owns any share in this company since that date. In the document that was presented to me [the report from the house of deputies] there is no proof that the company quoted is Amindus Holding de Glarus, There is only a mention of Amindus Holding and Amindus Holding AG».

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ronmentally. It is also known as social or environmental racism. No modern corporation wants to be accused of such practice. Along these global market strategies, ETERNIT S.A., now 100% Brazilian, gained control of the prices of fibro-cement products, since it was exploiting the mineral fibre, through its subsidiary SAMA, controlling the Cana Brava mine, with a cartel for the distribution, and the cost of labour through its partnership with domesticated unions and associates in the aggressive lobby for asbestos. As a consequence, Eternit remains the leader of the market for corrugated roofs, covers and sheets of asbestos-cement, even when they also produce materials without asbestos, called ETERFLEX and ETERPLAC. With the French company’s decision to ban asbestos from its products, the Brazilian Association of Asbestos (ABRA), which was the main spokesperson for the defence of the carcinogenic mineral, funded and financed by Brasilit, became extinct. ABRA held a central role in the creation of the Committee for Studies of Asbestos (CEA), on the model of the French CPA (Comité Permanent Amiante). The CEA directed the union and governmental policy of adopting the thesis of «controlled use of asbestos» and the soft approval and rules of the ILO convention 1627 . The Brazilian Institute of Chrysotile (IBC) succeeded ABRA for the promotion of indefensible asbestos. The IBC was funded in 2000, its seat in Goiânia, state of Goiás; it is principally financed by ETERNIT, jointly with the other asbestos-cement producers; it is built on the model of its Canadian cousin, the ex-Asbestos Institute (renamed Chrysotile Institute in 2003). In 2014, among shareholders of Eternit, there are no more state pension funds and its board is composed of stock market operators (speculators), investors without tradition in the market of construction. They see in Eternit only an opportunity of quick and easy profit; indeed the profits increased 16% since 2008. According to a paper published on 11th April 2014 in the business journal Exame, Eternit distributed each year dividends equivalent to 10% of the value of shares, three times the market average. In 2013, 70% of the profits where for the shareholders. Today there is a dispute between two rival groups for the control of the company. Obviously, this should also decide the movements and the «future of asbestos», since, as the business magazine quotes «Everything ends one day – even the asbestos fair8 ». 7 C162 - ILO Asbestos Convention (no 162) , 1986 http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0:: NO:12100:P12100_INSTRUMENT_ID:312307:NO Regulation of ILO Convention 162 in Brazil , Anexo 12 DA NR-15 : http://www.abrea.org.br/19leisnr15.pdf 8 Magazine Exame, 11 April 2014, Racha no clube do bilhão dentro da Eternit: http://exame.abril.com.br/revista-exame/edicoes/1063/noticias/racha-no-clube-dobilhao

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2. The ILO Convention 162 in Brazil and the tripartite model Following the discussions within ILO – International Labour Organisation – which lead to the approval of the Convention 162 and Recommendation 172, the Ministry of Labour created a working group called Interinstitutional Group on Asbestos (GIA). This group was organized with a multidisciplinary and tripartite character and set as purpose, among other things, to evaluate the degree of exposure to asbestos of workers within the fibro-cement industry in the state of São Paulo. Its mission was to assess the situation of production, manipulation and use of asbestos, the awareness of workers, concerning hazards and proposals to redefine the national policy for this primary material sector which was suffering increasingly from restrictions all over the world, due to its carcinogenicity and severe mortality, confirmed by proeminent scientific bodies, among which IARC – International Agency of Research against Cancer, WHO – World Health Organisation – and, in France, INSERM – National Institute of Heath and Medical Research. In the beginning, the GIA endeavoured to establish a bibliography on asbestos, specially in the medical part, looking for the casuistic of diseases caused by professional exposure, and draw a map of the uses of the mineral within national territory. At this historical point of political opening, after 21 years of military dictatorship and repression of organised workers movements, the Ministry of Labour represented the hope of a renewal of labour policy and union activities in the country. The GIA acted within this perspective of dialog with all social actors about the model of industrial development and the associated hazards, and the socio-environmental costs, when hazards were assumed. At this moment, 95% of asbestos use in Brazil, already a large producer and consumer, occurred in the fibro-cement sector. In reaction to these events, industry executives quickly mobilised and, through the ABRA, in June 1987, proposed to the presidency of Fundacentro, centre of research on workers health and safety of the ministry of Labour, the creation of CEA – Committee of Studies on Asbestos. The idea was welcomed by Fundacentro which hosted the CEA until its extinction in 1991, shortly after regulation of Convention 162. Representatives of the government and unions participated to CEA, nevertheless CEA contributed to the efforts and worlwide offensive in favour of asbestos use, it was a copy of the French Comité Permanent Amiante (CPA). There were frequent visits to meetings, seminars and activities of the

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CEA, from Dr. Jean Bignon and Dr. Marianne Saux9 and from representatives of the French union CGT, like Michel Odet, under the pretext of interexchange with Brazilian colleagues. They presented the successful French tripartite experience of «controlled use» and the pacific coexistence of members of CPA. The proposed model was a «social pact» for the progressive use of the carcinogenic mineral. The companies executives wanted to determine the orientations of national policies about asbestos and to manipulate the scientific production of the committee. The CEA stopped its activities in 1991, because many of its members of which, specially government representatives, did not agree to back these moves. Between 1987 and 1989, the GIA inspected 9 asbestos-cement factories in the state of São Paulo, following the phases of implementation of the ILO Convention 162, promoting debates between employers and employees. The results of this work show a severe panorama of the conditions of use of asbestos during this period, in the most industrialized state of the country, and were published10 . These two publications are therefore a historical register of work conditions at the end of the 80’s, in the sector of asbestos-cement in general and in particular showed a severe exposure of workers as we are going to sum up. 1. The investigation included initially 3456 workers among which 2506 from sectors directly linked to production. At the end of the inspections, in 1989, one of the factories had already closed, invoking and excess of rigour and legal demands and preferred to carry on production in another state, where surveillance would be less strict. Automation of some of the most dangerous procedures lead to a reduction of the work force to 2816 workers, among which 2228 in the production sector. 2. Inside 50% of the plants, partial (machines, equipment or departments) or total (all the productive chain) prohibition were sentenced. 3. In 1987, 75 minors under eighteen years old (3%) were found working in these factories ; in 1989 only eight remained (0,3%), reducing by 90% 9

Professor Jean Bignon came to the extent of comparing Paris air to that of Minaçu. After visiting SAMA’s plant, he declared to journalists that « the air in Minaçu is cleaner than in Paris ». http://www.camara.gov.br/sileg/integras/769516.pdf Dr. Marianne Saux was presented to Brazilian colleagues as a member of the French Ministry of Labour, head doctor, in charge of control of occupational health. She came to present the experience of her country on controlled use of asbestos. The fact that she also occupied in France the position of assessor as occupational doctor for Saint-Gobain was never mentioned. 10 Two publications from the Ministry of Labour: 1988 “Grupo Interinstitucional do Asbesto (GIA) - A ação interinstitucional no Controle da Exposição ao Asbesto dos Trabalhadores das Indústrias de Fibrocimento no Estado de São Paulo”, and 1993 “Asbesto no setor de fibrocimento” (asbestos in the fibro-cement sector).

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over this period children labour. 4. Asbestos consumption increased by 12% over this period, whereas the number of workers diminished by 18%. This means an average increase of 40% of the quantity of asbestos manipulated by each workers, thus increasing exposure risks, even if more eﬃcient systems of ventilation were installed, following controls. 5. From the formal legal point of view, hygiene and safety procedures and occupational medicine were regularized, with the employment of professional engineers and doctors and the organization of commissions of prevention of accidents, with the participation of elected workers ; nevertheless the functioning still left much to improve, principally in what concerns courses – very elementary and superficial – for the member of these commissions, about the risks linked to exposures to asbestos. 6. The medical follow up, clinical examinations organized by the companies were found lacking : for 50% of companies, there was no pulmonary function tests and, for 37% of companies, adequate information on the results of examinations was not properly given to workers. 7. Even if 100% of companies regularised the distribution of working uniforms, 37% did not provide washing, allowing to bring home working clothes and hence generating a risk of domestic contamination.

Labelling of Eternit product, 2014, with mentions : «contains asbestos», «when drilling or cutting, do not breathe the dust generated, because this could severely damage your health. Installation : consult our catalog».

8. In 1989, 100% of companies did not label their products with warnings on the hazards of asbestos11 , as prescribed by labour laws « Beware, 11

This disregard was initiated by Saint-Gobain/Brasilit, which estimated that such a

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16. Asbestos in Brazil : Controlled use? – F. Giannasi contains asbestos», « breathing asbestos dust is harmful for health» and « avoid risks : follow the instructions for use »12

Carpet made with residues of asbestos factory. Personal archive of Dr. Vilton Raile.

9. In 1989, wastes were inadequately treated with recycling of asbestos wrappings and machine filters blotted with asbestos fibres. More than 50% of companies continued to precariously recycle wastes and 25% were not implementing appropriate cleaning procedures. Further the common practice was to give asbestos residues to employees, to be used as construction material in their home, mainly for the building or repair of flooring, thus bringing to homes outside the factory a risk, without any control from health institutions13 . labeling was anti-commercial; they were followed by Eternit which stopped to label their products. 12 In 2014, the totality of asbestos-cement products continue to be distributed without instructions for use, which should contain informations on the type of fibres, the risks for health and linked diseases, the control procedures and individual protections to be applied. 13 ETERNIT pretended, as reported by Meirelles, W.J. (Ciclo de Rejeito Zero na Indústria de Cimento Amianto, Revista Brasileira de Saúde Ocupacional, No . 63, Vol. 16, Julho/Agosto/Setembro 1989, pp. 69-70) to have a zero rejection rate. In reality that was and remains false, for example Eternit recycled asbestos wastes to a company employing minors less than eighteen years old, which inserted wastes in plastic strings made for bags. We punished this company N. J. Embalagens Ltda., on 28/4/92.

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The actuation of GIA, based on the conception promoted by ILO (International Labour Organisation, with a tripartite composition) resulted in a tricky trap for the legitimation of «controlled use of asbestos». After the work developed by the GIA in the asbestos-cement sector, in 1989, the workers union from the building trade, linked with employers, created a structure which became more and more powerful, the Commissão Nacional dos Trabalhadores do Amianto (CNTA, national commission of asbestos workers), and became the union arm defense of the carcinogenic ore and the pro-asbestos lobby. These unions, against the tide of history, celebrated with employers a National Agreement for the Safe and Responsible Use of Chrysotile Asbestos. This agreement is, according to its definition by this organization, an instrument to back this mining activity in Brazil. This agreement, renewed every two years, brings benefits only to those who are healthy and employed. As soon as they fall ill, they are discarded and abandoned to their fate, and have to submit to petty extra-judicial agreement proposed by companies and backed by the unions, or they can choose to be added to the list of people excluded for and by work, relying only on the weak support of state and institutions. In reality, all the approved propositions in those negotiations depend in fact only on employers, because there is no autonomous workers association which can challenge the CNTA. This union arm of the industry resists all attempts to change the production process by replacing asbestos, even when jobs are guaranteed and when substitution products, safer for the workers, are available. An example is given with the Brasilit factory in Capivari, which does not use anymore asbestos, but whose workers union continue to defend use of asbestos and prevent the approval of a municipal law banning asbestos. The clause no. 55 in the agreement stipulates that «theBrazilianChrysotile Institute (IBC) will back, including financially, the CNTA – national commission of asbestos workers – for the development of actions concerning the divulgation and promotion of controlled and responsible use of chrysotile asbestos, as for the completion of training». Concerning this interference of companies in the actions of unions, violating the principle of freedom and union autonomy and the free organization of workers, a practice characterized as anti-union, a complaint was filed in front of ILO, on the basis of article 2 of convention 98, by ABREA – Brazilian Association of Exposed to Asbestos – an association we will describe further. A paper14 from the journal Folha de São Paulo describes this denunciation under the title «Unions receive money to defend asbestos» and, in an 14 Folha de São Paulo, 23 June 2008, Sindicatos recebem verba para defender o amianto: http://www1.folha.uol.com.br/fsp/dinheiro/fi2306200807.htm

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editorial dated 24th June 2008, the same newspaper writes about this absurd situation : «In Brazil, fifth producer in the world, the federal legislation is lukewarm. Some states and municipalities have created local norms banning use of asbestos. But these are contested in front of the Supreme Federal Court (STF) by the national commission of asbestos workers (CNTA). There are reasons to fear what could be the outcome of such a trade unionism geared towards results» A concrete example of the fiasco of this model of tripartite negotiations, which relies on the consensual approval by three parties (employers, workers and government), is the agreement, between the car industry and representatives of metal workers, for the substitution of asbestos, in the making of auto parts in 1994. The Labour Ministry, at that time, refused to sign the agreement for the substitution of asbestos but, on the other side, approved the CNTA agreement for the progressive use of asbestos in the asbestos-cement sector. The latter continues to be systematically recognized and ratified by the ministry since many years.

3. The «controlled use of asbestos»: distinct discourse and practice The fallacious ideology of «controlled use of asbestos» is illustrated in Brazil by totally opposed discourses and practices. In Brazil, the asbestos industry puts forward the security measures adopted in their plants, specially concerning mining and treatment of the ore, as well as in asbestos-cement factories, which, according to themselves, constantly use the fibres in a «controlled and responsible» way, under surveillance of employees participating to the «commission of control of the safe use of asbestos», whose members are elected, trained and subordinated to the CNTA, which can even destitute them from their functions, or approve them, according to the national agreement, along clauses 31 and 37. The leaders of the CNTA claim vehemently and publicly that they need neither inspections from governmental health, work and environment institutions, nor their expertise, help and advices, since they proclaim themselves self-suﬃcient to guarantee hygiene in the workplace. They consider this working model as a «progress in the relations at work» and, jointly with the Russian, Brazilian and Canadian chrysotile institutes, laud this methodology, where the state must not interfere into questions which interest only employers and workers. It is a kind of union neoliberalism, pushed towards the extreme, in favour of a minimal state, hostage to corporate interests.

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They also pretend that, in Brazil, unlike in European countries and the United States, obsolete and dangerous technology like asbestos spraying was never used, and that there never was indiscriminate and diﬀuse use of amphiboles. They claim the so-called safeness of Brazilian chrysotile or white asbestos, for its high degree of purity, free from contaminants such as amphibole tremolite and having the lowest biopersistence between all types of asbestos studied15 . They justify the absence of epidemiological data and reliable registers, concerning asbestos diseases, as being due to the lesser toxicity of the national chrysotile, compared to the use in other parts of the world. It is useful to underline here that, of course, absence of proofs is not the proof of absence16 . The reality is nevertheless quite distinct from this fallacious «controlled use of asbestos», and the images which follow illustrate the impracticability of this thesis and the emptiness of the discourse of the «merchants of death». The following photographs were compiled by the author, during control acts, as work inspector for the ministry of labour and employment. One can observe that no activity, where asbestos is used, is really guided by an awareness of the hazards or controlled by companies. The illustrations include in order: – A photo of a defect in the ventilation system of SAMA in Minaçu, which still pretends to be a model as a clean company; – Handmade conception of a diaphragm for electrolysis of chlorine, in a plant of company Braskem, located in the state of Alagoas; – Preparation of engine gaskets, company Vital in Taboão, state of São Paulo; note the floor is full of asbestos containing wastes; – Exports of asbestos, from the SAMA mine, are first transported by truck to the port of Santos, and then shipped. Road accidents unfortunately are not rare, this one occurred in August 2012. – The lorry (company Thermoid, Salto, state of São Paulo) on the next photo indicates it is carrying torradas Bauducco (biscuits and crisp bread), the problem is that on its way it also carried a load of loose asbestos, as shown on the following picture; – The last photo shows a child exposed to wastes from the old asbestos mine of SAMA. 15 Concerning this thesis developed notably by David Bernstein, who lives in Switzerland, see the blog VIOMUNDO, “Perito “suíço” em amianto foi pago pela indústria brasileira do amianto” (the swiss expert was paid by the Brazilian asbestos industry) : http://www.viomundo.com.br/denuncias/perito-suico-em-amianto-foi-pago-pelaindustria-brasileira-do-amianto.html 16 On this matter, see the paper of Hermano Castro, this volume (note of the editors).

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Asbestos dust pulsed through the gaskets of the ventilation system (SAMA/Minaçu/State of Goiás).

Worker in the chlor-alkali industry preparing an asbestos diaphragm for electrolysis (Braskem/State of Alagoas).

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Worker producing car gaskets with hydraulic cardboard containing asbestos (Vital/Taboão da Serra/State of São Paulo).

Road accident with 26 tons of asbestos to be exported by SAMA/ETERNIT, on the road to the harbour of Santos, State of São Paulo, August 2012.

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Transporting loose asbestos in a truck also used for the transport of food (Thermoid/Salto/State of São Paulo).

Improvised and precarious tentative to clean the floor of the truck, a case of flagrant irregularity (Thermoid/Salto/State of São Paulo).

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Child living and playing with stones and wastes of the old mine which stopped operating in (São Félix do Amianto/State of Bahia), environmental liability belonging to ETERNIT S/A.

All these displayed situations could have been prevented and confirm that «this sanitary disaster could have been avoided» and that we have not yet taken full measure of the eﬀects of irresponsible and uncontrolled use of asbestos in Brazil, since the boom of utilization of the killer fibre, in the 60’s, when the country became self-suﬃcient in the production of the carcinogenic mineral.

4. Forward and backward steps towards an asbestos ban The judicial situation in Brazil, concerning the question of asbestos, is complex, dynamic and, to say it all, confused, having evolved with the years, despite constant attempts to go backwards. Until 1991, work legislation adopted a tolerance limit of 4 fibres per cubic centimeter [4000 fibres per liter], which was reduced to 2 fibres per cubic centimeter [2000 fibres per liter] through the process of regulation via the ILO convention 162. The companies noticed, in the beginning of the 90’s, movements among the federal legislative authorities to approve a national ban, and they tried to establish a strong parliamentary basis to back the

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thesis of controlled use. This front, directed by politicians from the state of Goiás, involved in various scandals17 was labelled «bancada da crisotila». They gained force and succeeded through various artifacts in stopping the main initiatives aiming at the fixation of a final date for the extraction and use of asbestos in the country. One of the most eﬃcient manoeuvre was to transform the project of law by federal parliament member Eduardo Jorge (then member of the workers party, PT) of a progressive ban of asbestos, leading to a ban on asbestos, into the current federal law of controlled use (9055/95), which was regulated by the decree 2350/97 in the record time of 2 years18 . This law bans the use of amphibole asbestos and spraying, both little used in the country, and allows all use of chrysotile asbestos, with restrictive conditions of security, which are not verified in practice, most of the time, as we have illustrated. In response to this blow, the organized social movements changed their strategy, acting not only in the federal circle and National Congress, but looked for support of municipalities and states throughout the country (Brazil is composed of 26 states and there are 5570 municipalities, plus the federal district), gaining awareness, necessary conviction, mobilization and forging of a favourable public opinion through hundreds of public audiences and seminars. Through this arduous and exhaustive work, relative success was obtained with the various laws banning asbestos: 6 laws are now in force in the states of Rio de Janeiro, Rio Grande do Sul, São Paulo (in its second version), Pernambuco, Mato Grosso and more recently, Minas Gerais, but also two dozen municipalities19 . Other states have tried unsuccessfully to pass laws such as Mato Grosso do Sul, in the first instance, São Paulo in 2001, these laws were revoked by the Supreme Federal Court (STF), the highest court of judiciary. In the states of Pará and Espírito Santo, both without asbestos industry, the respective Governors yielded under the pressure from lobby and prohibition laws were not sanctioned, under the false argument that they would cause unemployment. So 6 state laws are in force in the country, but 4 of them (São Paulo, Rio de Janeiro, Rio Grande do Sul and Pernambuco) are questioned before the Supreme Court by the CNTA / NITC, once again defending the 17

Parliamentary band backing chrysotile was reported in several media as its financing election campaigns by the asbestos industry. But recently the most illustrious members of the band, as the state governor, Senator and Member of Parliament of the state of Goiás were also denounced within the "Montecarlo operation" by the Federal Police, for involvement in organized crime. See: http://www.viomundo.com.br/denuncias/operacao-monte-carlo-atinge-em-cheio-lobbyparlamentar-do-amianto-perillo-demostenes-e-lereia.html http://www.conversaafiada.com.br/brasil/2012/05/10/gilmar-entre-perillo-e-lereia-vivao-brasil/ 18 Decree n. 2350 of 15 October 1997, regulation of application of the law 9055/95, available on http://www.abrea.org.br/19ld2350.pdf 19 Municipal laws http://www.abrea.org.br/QUADRO %20ATUAL%20banimento.htm

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interests of the industry, through direct actions of unconstitutionality (ADI). This pseudo-union cites the argument that having a federal law of the controlled use (9055/95) would prohibit the approval of local state law. They allege a so-called invasion of jurisdiction, which, according to them, would be exclusive of the federal government. This was, at the time, the position adopted by the STF, concerning the revocation of laws Mato Grosso do Sul and the first law approved in 2001 in the state of São Paulo. The power of federal entities guaranteed by the federal pact of the Federal Constitution of 1988, was ignored by ministers STF at the time. Former presidents of the STF, retirees, were engaged as lawyers and consultants by the asbestos industry. With this, the Supreme Court, with only 11 ministers (judges) has become the scale as regards Justice and Parliament on asbestos. The problem is that the STF is clogged with trials, because it combines the characteristics of a Supreme Court (court of final instance) and a Constitutional Court (which considers questions of constitutionality, independently of the actual litigation). Because of this, its judgments may extend over years, even decades20 . The asbestos lobby is counting on this : delay as much as possible discussions and actions that would end the production and use of carcinogenic fiber. Entrepreneurs have publicly acknowledged that use of asbestos would stop around the world, but they ask for a transition period of 10 years to adapt to new technology of substitution. This is what they did with the law of Minas Gerais. Instead of simply oppose the approval of the law, as they have done in the past, they tried to ensure with the governor a delay of 10 years to reduce the legal eﬀects of the approved device. To eliminate the obstacle created by federal law 9055/95 and through wrong and retrograde bias of some current ministers of the Supreme Court, regarding the distribution of power between states and federal government, the National Association of Labour Magistrates (ANAMATRA) and Labour Prosecutors (ANPT) have launched a Direct Action of unconstitutionality (ADI 4066), for the controlled use law to be declared unconstitutional, as it violates the principles of our Magna Carta about the right to health and an ecologically balanced environment (Articles 196 and 225 of the Federal Constitution - CF). Despite the maddening slowness with which judgments are pronounced by the STF, there has been small advanced signals, such as the quashing of the liminar ("pre-judgment") which prevented the second law21 of the state 20

The British magazine The Economist, 21 May 2009, described STF as "the most overloaded court in the world”. In Brazil’s supreme court: When less is more. 21 Law 12.684/2007, which «bans in the state of São Paulo use of products, materials containing asbestos or any other mineral which, accidentally, contains asbestos fibres in its composition» http://www.abrea.org.br/LEI12684sancionadaserra.pdf

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of São Paulo to be enforced. Historic and celebrated decision, dated June 4, 2008, around the 3937 ADI, obtained by 7 votes in favour and 3 contrary, seems to have permanently changed the earlier jurisprudence on the power of states to legislate on health and environment. Even more depends on the judgment initiated on 1 November 2012, joined with ADI 3357, requesting the unconstitutionality of the law of the state of Rio Grande do Sul. Only two votes have been casted at the moment: one in favour and one against the law of the state of Rio Grande do Sul. As long as there is no final decision, the laws questioned remain in force, producing reasonable eﬀects.

Public audiences on asbestos at Supreme Federal Court (STF). From left to right : Laurie Kazan-Allen (IBAS/United Kingdom), Fernanda Giannasi (representing ANPT – National Association of Work Prosecutors), Marc Hindry (ANDEVA/France), Linda Reinstein (ADAO/United States), Hermano Albuquerque de Castro (Fiocruz/ Health Ministry). August 2012, Brasilia.

On 24 and 31 August 2012, public hearings were held in Brasilia, before the Supreme Federal Court, in an attempt to provide judges with technical information on asbestos use and its risks. These hearings counted with the participation of national and international activists and professionals, as in the picture above. Unfortunately the desired eﬀects have not yet materialized. At this opportunity CUT, the major national union of workers, took position in favour of a ban on asbestos in Brazil and published a translation in Portuguese of «Eternit and the great asbestos trial»22 . 22 Central Única dos Trabalhadores (CUT) : Campanha pelo banimento do Amianto (Campaign for asbestos ban): http://www.cut.org.br/acao/campanha-pelo-banimento-do-amianto-ccc5/

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Ex-president of the Supreme Federal Court (STF), minister Carlos Augusto Ayres de Freitas Britto (left) and president of ABREA, Brazilian Association of Exposed to Asbestos, Eliezer João de Souza.

In another judgment, on 28th September 2011, the STF, which was requested by the National Association of Transportation Charges and Logistics, with a "complaint for violation of fundamental precept" (ADFP 234) we witnessed a real setback and, from our point of view, a total error, with the authorization to transport asbestos charges for export through ports and airports across the roads of the state of São Paulo. In our view, according to the acts of labour inspection and for various lawyers, including from STF, it was included in the law banning asbestos in the state of São Paulo, that the transport was also prohibited in the state. We have also executed several interventions23 requiring the return of asbestos shipments to the producer, in this case the SAMA, in Goiás. The judges did not consider our argument that accidents very frequent (see photo previous pages), and that handling and storage of asbestos shipments in stores port of Santos, the largest in Brazil, generated hazards that were not acceptable from the point of view of state law. Because of a lack of technical knowledge, the judges considered that shipments were transported directly from the mine to the inside of the boat, ignoring several phases generating risks. This absurd decision therefore only prevents the transport of raw material for plants within the state of São Paulo. Another decision of the STF (Reclamation 16637) shows a more conservative trend, it comes following a public civil action (CPA) that the labour prosecution of São Paulo in 2013 initiated against Eternit S/A, in resonance 23 Film, control of an illegal loading of asbestos (Leme): http://www.youtube.com/watch?v=wucSgpCwMMA&feature=channel

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with the Eternit trial in Italy. The MPT accused Eternit of being responsible for diseases – lung cancer, mesothelioma and other non-malignant – and deaths of many of its employees. According to the labour prosecutor, Eternit has maintained the activity in Osasco plant for over 50 years, in spite of knowing the consequences of the use of asbestos; the legal action concerns more than 10,000 workers. The lawsuit seeks collective compensation for moral prejudice of an amount of one billion reais (about 320 million euros). The association of victims and exposed (ABREA) joined these requests. Unfortunately STF promulgated 13th December 2013, a hasty liminar (pre-judgment) in which it considers that there had been a similar action proposed by the public ministry of the state São Paulo in 2004. Therefore, due to the legal principle of "res judicata", the STF has suspended the action of the MPT. In fact, the two procedures are very different: in 2004 it was to improve the financial terms of extra-judicial agreements between Eternit and its former employees, while the action in 2013 specifically seeks to compensate individuals and families who did not sign these agreements. The Abrea filed an appeal and is awaiting the outcome. Other liminares have been conceded by labour courts in the state São Paulo, allowing two asbestos-cement companies24 to continue producing with asbestos until the judgement, by the STF, of legal actions against the prohibition law in force in the State of São Paulo. But the most serious of these backward steps is probably the liminar conceded by the Supreme Court of Justice, on 12th December 2006, attending the request by a group of 17 companies, headed by Eternit. These companies won the (provisory) right not to communicate the list of employees, exposed or having been exposed, and of those who suffer from an asbestos-related disease, in derogation of decree 1851/2006 from the ministry of health. On the other side, we can quote genuine judicial progresses: 1) The resolution 348/2004 from the CONAMA (National Council of Environment) includes asbestos in the list of hazardous wastes in the civil construction which must be disposed in specialized landfills25 . 2) The failure of too many attempts to criminalize public officials and antiasbestos activists. We’ll cite the condemnation of STIEBEMGOR, Sindicato dos Trabalhadores nas Indústrias Extrativas e Beneficiamento de Minaçu, Goiás e Região (Union of workers of the mining industry of Minaçu, Goiás and region), of the Chrysotile Institute and a journalist blogger from Goiás, which were forced to withdraw all offenses to the author of this paper, under a daily penalty fine of $ 2,500 per article26 . 24

dia.

25 26

The companies are Infibra, Permatex, from the group Leme and Confibra in HortolânDiario oﬃcial da união, 17 August 2004, http://www.abrea.org.br/conama348.pdf See, 08 August 2012, SP – Juíza condena Bordoni, IBC e Sindicato de Minaçu por

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3) The suspension27 , in 2004 and 2009, by the National Council of Autoregulation of Publicity of the deceitful campaigns of the Brazilian chrysotile institute (IBC). We show below an example of a panel boasting chrysotile asbestos which was removed after denunciation by ABREA.

IBC advertisement : «This truth has not two faces : chrysotile asbestos generates more than 200 thousands jobs in Brazil».

4) The compensation claims for moral or financial damages, in the work place, according to the constitutional amendment 45 of 30th December 2004, have led to the transfer of civil jurisdiction to that of labour, and thus the process of compensating victims of asbestos, which lasted 12 years or more is now processed on average in 5 years. The rate of success increased from 10,8%, in the civil justice circle, to 75,6% in the labour justice circle. The amount of compensation received have increased on average by 1000%. 5) A landmark judgement by the Superior Labour Court (TST), the highest instance of labour justice, condemned Eternit, on 7th May 2013, to pay a million reais (around 320 thousand euros) to the family of an engineer who died of pleural mesothelioma in 200528 . ofensas à honra de Fernanda Giannasi http://racismoambiental.net.br/2012/08/sp-juizacondena-bordoni-ibc-e-sindicato-de-minacu-por-ofensas-a-honra-de-fernanda-giannasi/ 27 See: http://www.fase.org.br/v2/admin/anexos/acervo/17_041030_conar _suspende_campanha_amianto.pdf and also, 12 February 2009, Conar reafirma proibição de campanha publicitária favorável ao amianto: http://portalimprensa.com.br/portal/ultimas_noticias/2009/02/13/imprensa26151.shtml 28 Globo, 07/05/2014 TST amplia para R$ 1 mi indenização a família de ví-

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5. Opposition forces : the creation of ABREA The creation of ABREA, Associação Brasileira dos Expostos ao Amianto (ABREA, Brazilian Association of Exposed to Asbestos) and of the Rede Virual-Cidadã pelo Banimento do Amianto na América Latina (Citizen Virtual Network for the Ban of Asbestos in Latin America) were two important moments for the development of the struggle against asbestos in Brazil. In 1994 the Seminário Internacional do Amianto : Uso Controlado ou Banimento? was organized in São Paulo, following the seminar Bastamianto, April 1993, which lead to the Appeal of Milan29 , which pointed out the need of international actions against asbestos. The pressure of the industry, of their allied unions in Brazil, and of the Comité Permanent Amiante from France, have disrupted the meeting, preventing for example the Minister of Labour at the time from attending the opening, but failed to cancel the meeting.

The large Eternit factory in Osasco, in 1993, before closing

In May 1995, the demolition of the old Eternit plant in Osasco had already started, when we stopped it, after an inspection that revealed a high risk and precarious conditions of work, due to the lack of protection of workers against asbestos dust as well as the risks of dispersion in the environment. tima do amianto, http://g1.globo.com/brasil/noticia/2014/05/tst-amplia-para-r-1-miindenizacao-familia-de-vitima-do-amianto.html 29 Appeal of Milan, 1993 (in portugais): http://www.abrea.org.br/21apmila.htm

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The factory had been closed for two years, these actions had repercussions in the local media and a contact was established with ex-employees of the plant, worried about their health, having already knowledge of several deaths. The photos below show the state of pollution of the demolition site and the gradual mobilization of the workers.

The demolition site of the Eternit plant in Osasco (1995).

Discussions between workers on the factory demolition site and work inspector, Fernanda Giannasi

A series of meetings took place at the seat of the ministry of labour in Osasco, whose purpose was to evaluate the problem and look for persons which were ill and had been exposed to asbestos. Finally the association ABREA, Associação Brasileira dos Expostos ao Amianto, was founded at

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the end of 1995. Osasco was also one of the first municipalities to ban asbestos use, production and trade. The city was also the seat of the symposium organized by Abrea in 2000, Global Asbestos Congress, which brought together more than 300 participants from many countries. The ABREA represented initially only sick workers from the former Eternit factory in Osasco, but with the diﬀusion of its actions and a better knowledge of the risks associated with asbestos, other associations and groups of victims were formed mainly in the states of Rio de Janeiro (ABREA/Rio), Paraná (APREA), Bahia (ABEA), Minas Gerais (AMEA) and Pernambuco (APEA). In the state of São Paulo, ex-employees of Brasilit/Saint-Gobain from the pipe plant of São Caetano do Sul, the oldest plant of the French group, organized a group of victims and joined the ABREA. Following demands to the court of victims groups to obtain funding for medical treatment and compensation, Eternit and Brasilit – still together at the time – hired a famous law firm, Pinheiro Neto, and the firm devised extra-judicial agreements to avoid losses in the courts. These leonine agreements stipulate that in order to receive compensation and a health plan, workers must undergo examination by a medical junta exclusively chosen by companies which decide a compensation level I, II or III. The agreements also provide for a waiver of any future judicial demand and loss of "rights" granted in the case where asbestos is banned and the company prevented from producing business or bankrupt. It is estimated that companies had the success they expected (benefits minus liabilities and especially impunity and invisibility) with 4,000 former employees and families who have agreed to submit to extra-judicial agreements under the auspices of the CNTA. The group of victims from the SAMA mine in Goiás (AGEA) collapsed, having suﬀered pressure and harassment from the union of workers of the Minaçu mine STIEBEMGOR Sindicato dos Trabalhadores nas Indústrias Extrativas e Beneficiamento de Minaçu, Goiás e Região (Workers Union of the industry of mining and processing of Minaçu, Goiás and region) – union linked to the Brazilian Chrysotile Institute, which is shown as "partner" on its website. In fact, members of the AGEA have been "seduced" by promises of jobs for members of their families and others were bribed to attack us with slander, libel and defamation.

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Demonstration organized by STIEBEMGOR and CNTA during the public audience at Curitiba, current seat of Eternit head and state of Brazil which produces most asbestos-cement. The banners say «We fight for the controlled use of asbestos-cement», «It is the duty of Public Ministry to maintain this wealth», «Chrysotile asbestos, more than 20 years of safe use» and also «The reality in Brazil is not the same as in Italy.»

6. The struggle for the visibility of asbestos diseases in Brazil Until 1984, only 100 cases of diseases attributed to asbestos were listed in the Brazilian medical literature. Curiously not a single case had been registered as an occupational disease in the social security registers. Those cases were communicated in medical congresses and academic publications without social repercussion. This must sound the alarm about the seriousness of the lack of data on these diseases in our country30 . The origins of what may be called «epidemiological silence» are on one side the failure of public authorities in searching exposed and ill workers and, on the other side, the deliberate concealment of cases of illness and death from the producer and user companies. 30

See the paper of Hermano Castro, this volume (note of the editors).

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Several mechanisms contribute to making asbestos victims invisible in the statistics of our country: • The low-income population does not have access to specialized health services; • The basic health care system can not handle the oncological complexity for differential diagnosis between mesothelioma and adenocarcinoma; • Only 5 to 10% workers get a correct diagnosis of work-related diseases; training of occupational physicians is particularly inadequate; • 25% of deaths are registered only generically; • The long latency period of asbestos diseases (on average more than 35 years for cancer) makes it difficult to establish the causal link for workers who often are far from the factory where they were exposed. The industry is trying tirelessly to support the idea that, from 1980, they adopted the "safe use" and that since diseases no longer appear. • In the 10th version of the International Classification of Diseases (ICD), the mesothelioma has a specific code (C-45). This version was authorized for coding deaths in Brazil from 1996 and morbidity from 1997. Previously mesothelioma did not appear in any official register in Brazil. • As we already mentioned, the STJ has allowed 17 companies to withhold from the Systema Único de Saúde (SUS) the list of their employees which are exposed or ill; • Extra-judicial agreements signed by Eternit and Brasilit with over 4,000 former employees and their families, until recently did not involve any communication of information for social security. These agreements function as a "gag law" because those who signed will no longer protest, for fear of losing health insurance included in the pact or fear of having to return the money received. • The work of women in unhealthy activities such as working with asbestos was not identified in Brazil, before the adoption of Act No. 7855/89. This particularly concerns the asbestos textile companies in Rio de Janeiro and São Paulo, where were installed subsidiaries of Johns-Manville and Garlock Long – two multinational involved in key civil compensation lawsuit in the United States. • The fast turnover among the work force. The asbestos industry has a turnover of three years on average. In the 90s, the work of GIA, that we described earlier, quoted an asbestos-cement company with 90% turnover per year. • Lack of health checks and work inspections. • Misinformation of the public, about the risks and diseases related to asbestos, is orchestrated with a disconcerting cynicism by SAMA and the Brazilian Institute of chrysotile. We illustrate this reproducing advertising tempting to associate asbestos and wine, which refers to the World Health Organization (WHO), claiming to follow its recommendations.

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Deceitful propaganda from SAMA, forbidden by justice. Behind the glass of red wine, the large letters say: «Asbestos : the more you know it, the better it becomes». Within the text, one can read : «Brazilian reality is different. Our asbestos, called Minaçu Chrysotile, has nothing in common with the one used in Europe. Contrary to other types of asbestos or substitutes, it reduces radically health risks» and further «So, use of products with Minaçu chrysotile, like in roofs, water tanks, brakes, textiles and other products do not present risks for health.»

This «lack of oﬃcial disease» caused by these mechanisms of invisibility corroborates the discourse of «safe, responsible and controlled use» is the leitmotiv of the asbestos lobby, repeated ad nauseam, which has already delayed by two decades the asbestos ban in the country. The Abrea fought to end this epidemiological silence and denounced to the public ministry of labour, the companies Brasilit and Eternit for their extra-judicial agreements, which in addition to ridiculous amounts paid in respect to compensation, make invisible patients for public health agencies and social security. A code of conduct has been established by the labour prosecution of the state of São Paulo with the two companies: Brasilit agreed

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to communicate to the social security the almost 1,000 cases of diseases in its 4 asbestos-cement factories. Eternit has only agreed to communicate 337 work accidents in the old factory of Osasco and, even so, did not honour its commitment and for this reason, was fined 1.75 million reais (575,000 euros) in August 2013. The Eternit conglomerate still has 4 plants in operation, a subsidiary named Precon and SAMA (the asbestos mine in Minacu). Several victims hoped their illness receive the visibility that the companies denied; the two photos below illustrate the recent campaign for respect for the suﬀering and stop the use of asbestos in Brazil. Received 17 May 2014 Translated from Portuguese by Marc Hindry

«I will not see my grand-children growing up, my name is Damião de Souza I’m 70 years old, I worked 21 years for Eternit and I’m terminally ill from asbestos disease»

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Campaign from Labour Public Ministry «stopping asbestos use is a matter of life or death». The photo shows, on his hospital bed, «Aldo Vicentin, asbestos victim», who died of mesotheliome in 2008. Gisélia Vicentin, Aldo Vicentin’s widow, was present at the conference in Paris, 12 October 2012.

References 1) Website of ABREA, Associação Brasileira dos Expostos ao Amianto: http://www.abrea.org.br/ 2) References to trials at Supreme Federal Court (STF) : ADI 4066. Direct action of unconstitutionality against the 1995 federal law authorizing the use of asbestos in Brazil. http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp? numero=4066&classe=ADI&codigoClasse=0&ORIGEM=JUR&recurso =0&tipoJulgamento= ADI 3357. Direct action of unconstitutionality against the law banning asbestos in the state of Rio Grande do Sul. http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp?

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16. Asbestos in Brazil : Controlled use? – F. Giannasi numero=3357&classe=ADI&codigoClasse=0&ORIGEM=JUR&recurso =0&tipoJulgamento= ADI 3937. Direct action of unconstitutionality against the law banning asbestos in the state of São Paulo. http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp? numero=3937&classe=ADI&codigoClasse=0&ORIGEM=JUR&recurso =0&tipoJulgamento= Trial and judgement concerning transport of asbestos within the state of São Paulo (ADFP 234): http://www.stf.jus.br/portal/processo/verProcessoAndamento.asp? incidente=4071000 Transcription of public audiences, 24 and 31 August 2012, STF website: http://www.stf.jus.br/arquivo/cms/ProcessosAudienciasPublicasAcoes Amianto/anexo/Transcricoes_Audiencia_sobre_Amianto_Texto _consolidado.pdf Liminar suspende processos na Justiça do Trabalho por alegação de descumprimento à decisão do STF (13 December 2013). http://www.stf. jus.br/portal/cms/verNoticiaDetalhe.asp?idConteudo= 256034&caixaBusca=N Folha de São Paulo, 24/8/2013 « Eternit terá de custear saúde de exoperários devido exposição ao amianto » (Eternit will have to pay for the health care of ex-employees exposed to asbestos) : http://www1.folha.uol.com.br/mercado/2013/08/1331305-eternit-tera-decustear-saude-de-ex-operarios-devido-exposicao-ao-amianto.shtml Judgement of STJ allowing 17 companies, among which Eternit, not to communicate asbestos diseases and deaths http://www.abrea.org.br/mandadoportaria1851.pdf Decree(PORTARIA)No 1851/GM, 9 August 2006, http://dtr2001.saude. gov.br/sas/PORTARIAS/Port2006/GM/GM-1851.htm Labor, Labour Ministry, 2013, A morte lenta e silenciosa dos empregados da Eternit (the slow and silent death of Eternit employees) http://portal.mpt.gov.br/wps/wcm/connect/6e46290041b81151b0c3f7 bbcecb92c3/Labor3_email.pdf?MOD=AJPERES&CACHEID=6e 46290041b81151b0c3f7bbcecb92c3 Instituto humanitas unisinos, 1 mars 2012, O uso do amianto no Brasil: ”A ciência não evolui no banco dos reús, mas no debate acadêmico”. Entrevista especial com Hermano Albuquerque de Castro http://www.ihu.unisinos.br/entrevistas/507030-o-uso-do-amianto-no-brasila-ciencia-nao-evolui-no-banco-dos-reus-mas-no-debate-academico -entrevista-especial-com-hermano-albuquerque-de-castro O Globo, 11/11/2013 Eternit ‘cortejou’ ex-funcionários contaminados com amianto para evitar ação na Justiça, diz MPT http://oglobo.globo.com/economia/eternit-cortejou-ex-funcionarioscontaminados-com-amianto-para-evitar-acao-na-justica-diz-mpt-10741388

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11) STIEBEMGOR, Sindicato dos Trabalhadores nas Indústrias Extrativas e Beneficiamento de Minaçu, Goiás e Região (Workers Union of the industry of mining and processing of Minaçu, Goiás and region), IBC website. http://www.ibcbrasil.org.br/parceiro/stiebemgor 12) National Commission of Asbestos Workers, 1 October 2009 : «national agreement for the use of chrysotile»(in portuguese) : www.cnta.org.br/arquivos/Acordo%20Nacional%20para%20Uso%20 Controlado%20do%20Amianto%20Crisotila.pdf 13) Epoca, Justiça condena blogueiro defensor do amianto http://colunas.revistaepoca.globo.com/felipepatury/2012/08/09/justicacondena-blogueiro-defensor-do-amianto/ 14) Gazeta do povo, 11/06/2013, Trabalhadores pró-amianto se manifestam em evento pelo fim da substância no PR. http://www.gazetadopovo. com.br/vidaecidadania/conteudo.phtml?id=1380992

Chapter 17

Australia’s Asbestos Journey by Lisa SINGH My first experience with asbestos was in 2008, when I became the Minister for Workplace Relations in the Tasmanian Government. I became aware of the plight of asbestos disease suﬀerers from the stories I heard from Australian families torn apart by asbestos-related disease. I started a reform agenda on asbestos in my home state of Tasmania seeking justice for victims and have continued that fight in the Australian federal Senate with the support of our Australian Minister for Workplace Relations, Bill Shorten.

1. Mining and Wittenoom Australia’s asbestos journey began almost 75 years ago, when the mining of crocidolite – blue asbestos – began in Western Australia. Between 1948 and 1966, CSR pulled more than 150 000 tonnes of blue asbestos out of the ground in a town called Wittenoom1 . Inside the mine, workers were forced to crawl around in hot, dark spaces where bent double, they chipped away at walls of blue asbestos. Above ground, in the town that was home to over 20 000 people, dust levels from trucks, clothes and tailings in the community were as high as 1 fibre per millilitre of air (f/ml)2 . Many residents were happy to put up with these conditions, believing that the work the mines provided would help them to secure their future. We now know better. Robert Vojakovic was an employee at Wittenoom in 1961. While Robert dodged the bullet of asbestos-related disease, in the 1 Department of Industry and Resources & Department of Local Government and Regional Development. Management of Asbestos: Contamination in Wittenoom: http://www.safetyline.wa.gov.au/PDF/Transcripts/Wittenoom_Transcript.pdf 2 A Reid et al, “The mortality of women exposed environmentally and domestically to blue asbestos at Wittenoom, Western Australia”, Occupational and Environmental Medicine 65 (2008): 744. 743-749.

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1970s he realised the lack of medical, legal or welfare support for former Wittenoom miners. Robert began a 32 year long campaign for justice, founding the Asbestos Disease Society of Australia (ADSA) to support victims. One must only visit ASDA to be struck by the rows and rows of files of deceased sufferers who lost their lives too soon. Outside, in the waiting room, there are many more waiting for support. The National Health and Medical Research Council predicts that the fatality list of Wittenoom will top 2 000 people3 . It remains Australia’s greatest industrial disaster. James Hardie Industries But in the contest for the worst Australian record on asbestos, James Hardie Industries is a clear winner. Hardie’s dominated the market for asbestos products from the 1940s until the 1980s. By the 1970s, when increasing numbers of Hardie’s workers were being diagnosed with asbestos related diseases, questions about how much they knew about the dangers of asbestos began to be asked. As early as 1935, two Hardie’s workers had been identified as suffering the effects of asbestos dust. By 1936, more than half a century before asbestos was banned in Australia, Hardie’s split its business into subsidiaries, going behind a ‘corporate veil’ company to avoid future claims4 . When the public discovered the effects of asbestos and claims were made against Hardie’s in the 1990s, they systemically shifted assets overseas to the Netherlands where they could avoid liability5 . Under pressure in 2001, the company established a fund of $ 293 million to cover asbestos claims. They said this would meet all future claims6 . It soon became clear it would not. It took a judicial inquiry in 2004, a massive national campaign and a three year court battle waged by the late Bernie Banton, one of Australia’s most inspirational figures, for Hardie’s to ultimately guarantee a compensation fund of $ 4 billion7 . CSR and James Hardie knowingly inflicted pain, suffering and death on so many Australians. Hardie’s alone, fully aware of what they were doing, poisoned over 20 000 Australians with this toxic substance. Asbestos mining was banned in Australia in 1983 but it continued to be imported from places such as South 3 NHMRC, “Asbestos related diseases”. www.nhmrc.gov.au/your-health/asbestosrelated-diseases. See also Musk AW, et al. “Mortality of former crocidolite (blue asbestos) miners and millers at Wittenoom”, Occupational and Environmental Medicine 65 (2008); 541-543. 4 Matt Peacock, Killer Company (Sydney: HarperCollins, 2009), p. 53. 5 D. F. Jackson, Report of the Special Commission of Inquiry into the Medical Research Fund and Compensation Foundation (2004), p. 8-10: www.dpc.nsw.gov.au/__data/assets/pdf_file/0020/11387/01PartA.pdf 6 Ibid. 7 Ali Moore, “James Hardie shareholders throw support behind $ 4b compensation fund” (7 February 2007): www.abc.net.au/lateline/business/items/200702/s1842683.htm.

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Africa, to be used in the production of cement sheeting. Known by the short-hand expression “fibro”, this cement sheeting dominated the Australian construction industry throughout the ’80s, until finally the Australian government banned all forms of asbestos in 2003. But still more than 600 Australians die each year from asbestos related disease and that is expected to continue to rise until 20208 .

2. Recent Reform At the time I became the Tasmanian Minister for Workplace Relations, the law made it difficult or impossible for asbestos victims to access compensation. One of my first tasks as Minister was to create a compensation scheme that would help ease the burden as people dealt with the onset of asbestosrelated disease. After negotiation between NGOs, unions and business, I was able to strike an agreement to place a levy on the premium paid to workers’ compensation insurance premiums – a compulsory insurance cover for employers in Tasmania – to create a fund to assist victims of asbestosrelated disease9 . That scheme is now law in Tasmania, and payments are now helping to reduce the sacrifice of families in those difficult times. Though I left the Tasmanian Parliament in 2010, my sense of injustice about the effect of asbestos never diminished. I decided to continue work in support of victims, founding and becoming CEO of a new support organisation, the Asbestos Free Tasmania Foundation, which provided support to Tasmanian asbestos sufferers10 . Since joining the Australian Parliament in 2011, one of my first activities has been to create the non-partisan Parliamentary Group on Asbestos Related Disease (PGARD). The political party to which I and the Government belong, the Australian Labor Party, named asbestos a priority issue at its national conference last year. A resolution to promote a global ban on the use of, and trade in, asbestos was carried our national conference. A second resolution which I introduced pledged Australia to cooperate with international partners to ensure workers across the world were protected from asbestos.

8 Stephanie Gardiner, “Asbestos now aﬀecting third wave of victims" (30 March 2012). http://www.smh.com.au/national/health/asbestos-now-aﬀecting-third-wave-of-victims20120330-1w25r.html. 9 Details of Tasmanian asbestos compensation are available at the URL: http://www.asbestos.tas.gov.au/compensation. 10 Details of the Asbestos Free Foundation Tasmania are available at the URL: http://www.asbestosfreetasmania.org.au.

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Third Wave Unfortunately, asbestos is no longer just affecting workers. In Australia, one third of homes built between 1945 and 1980 contain asbestos11 . Lincoln Hall scaled Mount Everest in 2006, left for dead after falling ill on his descent. But he survived the night at 8600m, without oxygen or proper equipment. Ultimately, it was not the impossible cold or the altitude sickness that killed Lincoln, but mesothelioma he developed some 47 years after, as a small boy, he had helped his father build a cubby house out of asbestos12 . Similarly, Serafina Salucci was just eight years old when her father built a garage using fibro sheeting. As children do, she would play outside, amongst the off-cuts and the dust. Serafina was diagnosed with mesothelioma in 2007. She was just 37 years old, and the mother of four children under the age of 10. Doctors told her she has only a couple of years to live. She has outrun the disease so far, losing a lung and a number of ribs in the race. Estimates by the University of Melbourne suggest that more than 25,000 Australians will die from mesothelioma over the next 40 years, largely because Australians continue to be enthusiastic do-it-yourself renovators13 . They continue to tear up flooring and knock down walls, often unaware of the risks of disturbing asbestos. Differences between states and territories on asbestos management make it difficult for people to understand the law on asbestos. Many do not know how to properly dispose of asbestos; and sadly, many people do not realise their homes contain asbestos in the first place. That is why the Australian Government commissioned a review on asbestos management14 . The report of this review contains two principal recommendations: the establishment of a national plan and a national coordinating body to deal with asbestos. Our Minister Bill Shorten has committed to these recommendations, and the Office of Asbestos Safety has now been established15 . That plan will contain a strategy to make people aware of the risks of asbestos, including requiring the presence asbestos to be disclosed on the electricity meter of a property. It will contain ways to expand proper facilities to dispose of asbestos, to stop it being dumped in beautiful Tasmanian forests 11

NHMRC, “Asbestos related diseases”. www.nhmrc.gov.au/your-health/asbestosrelated-diseases. 12 ABC News, “Mountaineer Lincoln Hall Dead at 56”, www.abc.net.au/news/2012-0321/lincoln-hall-dies-in-sydney/3903640. 13 University of Melbourne, “The Killer Within”, University of Melbourne Voice 3, no. 2 (12 May - 9 June 2008), archive.uninews.unimelb.edu.au/news/5164/index.html. 14 Report available at Department of Education, Employment and Workplace Relations, “Asbestos Management Review”, deewr.gov.au/asbestos-management-review-0. 15 Details of Oﬃce of Asbestos Safety are available at deewr.gov.au/oﬃce-asbestos-safety.

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or overflowing from rubbish bins on the side of the road16 . And the plan will contain a strategy for reducing or eliminating the terrible legacy of asbestos in Australia. COP 6 and International Eﬀorts Elsewhere in the world the battle is just beginning. As a Senator, I have made it my goal to support our comrades fighting asbestos in India, in Thailand, and the Philippines to name a few. Australia is committed to regulating the trade of chrysotile asbestos by listing it as a toxin on the Rotterdam Convention on Prior Informed Consent. The Convention covers pesticides and industrial chemicals that have been banned or severely restricted for health or environmental reasons by Parties and which have been notified by Parties for inclusion in the PIC procedure. One notification from each of two specified regions triggers consideration of addition of a chemical to Annex III of the Convention. Having been notified by Australia, Chile and the EU, chrysotile asbestos was considered for listing on Annex III at the third, fourth and fifth Conferences of the Parties (COP) in 2006, 2008 and 2011, respectively17 . The Convention requires consensus, rather than majority, for new listings to Annex III. Kazakhstan, Kyrgyzstan, Ukraine, Vietnam and Canada were opposed to the listing of chrysotile in 2011. India was previously opposed but withdrew its opposition at the COP in 2011. Canada has now declared its intention to reverse its opposition18 . The Russian Federation has become a party to the Rotterdam Convention and is expected to oppose the listing at the next COP in April/May 2013. Australia has actively supported the listing on all three occasions. Similarly, Australia is committed to supporting unions across the world still trying to prove to recalcitrant governments that asbestos kills. But we all have an obligation to ensure Australia’s tragic history, still unfolding, does not repeat itself on the shores our international neighbours. The curse of asbestos must stop, and we must use the experience in this room and across our movement to make sure it is ended. Received 10 March 2013 16 Asbestos is regularly dumped in Tasmania forests by home renovators, owing both to ignorance and to the relatively high cost of safe disposal. See for example: www.forestrytas.com.au/branchline/e-branchline-archive/archive/branchlinemay-14-2009/asbestos-threat-requires-major-clean-up. 17 Detail available in the upcoming COP6 agenda, at UNEP/FAO/RC/COP.6/12. www.pic.int/TheConvention/ConferenceoftheParties/Meetingsanddocuments/COP6/ tabid/2908/ctl/Download/mid/9381/language/en-US/Default.aspx?id=89&ObjID=38654. 18 CBC News, “Canada won’t oppose asbestos limits” (14 September 2012). cbc.ca/news/canada/montreal/story/2012/09/14/montreal-canada-thetford-minesasbestos.html.

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• More than 600 Australians die each year of mesothelioma • Bans on the mining of raw asbestos and manufacture, import and installation of products containing crocidolite and amosite asbestos were introduced in most Australian jurisdictions from 31 December 1984 • A complete ban on the use of asbestos began on 31 December 2003 • More than 750,000 tonnes of asbestos was mined in Australia • From 1930 until 1983, approximately 1.5million tonnes of all forms of asbestos was imported into Australia

Chapter 18

Successes and Challenges in the Compensation of Asbestos Victims in South Africa, with a Particular Focus on the Asbestos Relief Trust by Tina da CRUZ The Asbestos Relief Trust (“the Trust”) was created following an out of court settlement in March 2003 between several South African mining companies (“the founders”), and claimants who had been exposed to asbestos from the operations of these companies. The Trust was the first private compensation scheme of its kind established in South Africa. Its establishment came in the context of and, arguably, in response to an ineﬃcient and ineﬀective statutory benefit system for miners who developed lung diseases as a result of their work, provided for under the Occupational Diseases in Mines and Works Act (ODMWA), 73 of 1973. This benefit system provided paltry compensation to asbestos miners and did not cater for those persons who developed asbestos related diseases as a result of environmental and para-environmental exposure.

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1. The Asbestos Relief Trust Primary Objective Founded in March 2003 it was the first private fund of its kind which provided for the payment of compensation to former miners1 over and above that which they could claim from under ODMWA2 . The primary objective of the Trust, as set out in its Deed of Trust3 , is to: to provide compensation to Qualifying Claimants in respect of asbestos related diseases as fully, fairly and eﬀectively as its means allow, having due regard, inter alia, to: – the respective settlement amounts received by the Trust; – the life of the Trust; and – the actual and likely number of claims submitted, or to be submitted to the Trust for compensation. Due to the nature of asbestos related diseases (ARD), and the periods during which the mines4 owned by or associated with the founders operated, the lifetime of the Trust was set at 25 to 30 years. An amount of approximately R380million was settled on the Trust by the defendant companies, or founders, in a lump sum. These moneys are used to pay both the administrative costs of running the Trust and awards to beneficiaries. Claims Criteria In order to qualify for compensation the following criteria must be met. The claimant must: • Have been either occupationally or environmentally exposed to asbestos from qualifying operations. These are referred to as the administrative criteria. A qualifying operation for the purposes of lodging a claim with the Trust is a mine owned by or associated with the founders of the Trust. 1 The Trust also accepts claims from persons who were exposed to the asbestos manufacturing operations of the founders, namely Gencor, referred to as Gencor Associated Asbestos Manufacturing Concerns (GAAMC). GAAMC comprise a very small percentage of operations that the Trust covers and, as a result, GAAMC claims will not be covered in this document. 2 The establishment of the Trust was followed in 2006 by the establishment of a second private benefit scheme, the Kgalagadi Relief Trust (“KRT”). The KRT, similar in nature and purpose to the Trust, was founded by Swiss company Becon on behalf of the former Eternit Group. It accepts claims from persons who were exposed to the asbestos mining activities of South African-based companies owned by or associated with the founder between 1 January 1952 and 30 September 1981, who have developed a compensable asbestos related disease as defined in the Deed of Trust. 3 Clause 4, Asbestos Relief Trust Deed of Trust 4 The reference to mine also includes mills and other sites where asbestos mining or mining related activities took place.

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• Be suﬀering from a compensable asbestos related disease (ARD). These are referred to as the medical criteria. A compensable ARD means mesothelioma and asbestos related lung cancer, or lung fibrosis (asbestosis and/or pleural thickening), with lung function impairment. • Be a dependant of a person who was either occupationally or environmentally exposed to asbestos from a qualifying operation and who died from mesothelioma or an asbestos related lung cancer, within 3 years of the claim being lodged. Claims Process The claims process is a three stage process. In the first stage the claimant5 must confirm that they were exposed to asbestos, this usually takes the form of a Record of Service containing the claimant’s details, period of employment and job description6 . Due to the fact that most asbestos mines closed over a decade ago and because of the diﬃculty that claimants would have accessing their records of service from mines that have closed or are in the process of winding up, the Trust undertook to locate and digitize all employment records for employees who worked at qualifying operations. The confirmation of occupational exposure was greatly facilitated by this initiative. In the second stage all claimants undergo pre-determined medical tests to establish whether they have a compensable ARD. The results of these tests are assessed by an independent panel of occupational medicine specialists (“referred to as SOMP”). After considering all the medical evidence SOMP reaches a conclusion on whether the claimant has a compensable ARD as defined in the Deed of Trust. If the claimant meets both the administrative and medical criteria, his award is calculated and paid out into his nominated bank account. This comprises the third stage of the claims process. Compensation is paid out in a lump sum. A claimant who was previously compensated for lung fibrosis and who develops mesothelioma or asbestos related lung cancer, can lodge a second claim.

A claimant is defined as a person who meets all the criteria for lodging a successful claim for compensation. However, for the purposes of this document the term claimant is used to describe an individual who lodges and pursues an application for compensation, regardless of whether he meets all the criteria for a successful claim, and who would otherwise be referred to as an Enquirant. 6 The process for lodging environmental claims diﬀers in that the claimant must first establish that he has a compensable asbestos related disease before exposure to asbestos from a qualifying operation is confirmed.

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Awards to Claimants Awards are calculated with reference to an actuarially-determined award schedule. The award schedule was drawn up taking into account damages which can be claimed in a civil case namely, loss of earnings, medical expenses and, pain and suﬀering, as well as the total amount of funds available to the Trust, and the likely number of claimants to qualify for an award. The fund undergoes annual actuarial evaluations to determine and ensure its financial viability. Currently awards range up to R1million, approximately $100 000. The quantum depends on several factors including but not limited to the age of the claimant on registration of the claim, his skill level and the severity of illness. Claimants of the Trust are also able to claim their compensation under ODMWA (see below). Compensation received from the Trust is regarded as a “top-up” to that received or receivable from the State in terms of ODMWA. These awards are, in the majority of cases, significantly higher than those paid by the statutory benefit system. The claims process is free. The Trust pays for the first medical examination however Claimants may also submit medical records from their own physician. Access to the claims process was facilitated through the appointment of claims handlers, who are mainly attorneys, and who are paid by the Trust to represent and assist persons to pursue a claim.

2. Brief Overview of the Statutory Compensation Schemes Occupational Diseases in Mines & Works Act, 78 of 1973 (ODMWA) The ODMWA benefit system was set up the State and the mining industry and, is principally funded by contributions from mining companies. ODMWA only covers miners who develop compensable lung diseases as a result of their occupation. ODMWA covers all miners, e.g. asbestos, gold/platinum. It is often referred to as a “no-fault” compensation system – miners who develop compensable lung diseases as a result of their work claim compensation from this fund rather than from their employers7 . 7

Previously employees unable to sue employers under COIDA and ODMWA BUT Thembekile Mankayi v AngloGold Ashanti Limited (CCT 40/10 [2011] ZACC 3), Constitutional Court case decision upheld employees’, covered by ODMWA, common law rights to sue.

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Miners are entitled to undergo a free Benefit Medical Examination (BME) every two years at an accredited medical facility8 . The Medical Bureau for Occupational Diseases (MBOD) assess the medical records and its Certification Committee determines whether the miner has a compensable lung disease. If the miner is certified as having a compensable lung disease, the Compensation Commissioner for Occupational Diseases (CCOD) is charged with paying the compensation. Compensation for Occupational Injuries and Diseases Act, 130 of 1993 (COIDA) (and its successors) COIDA deals with and compensates for non-mining occupational related lung disease, e.g. those exposed in power stations, and other occupational related injuries and diseases. It only caters for and covers individuals who develop a compensable disease or become injured as a result of their work. Compensation Challenges A number of challenges exist in respect of the various compensation regimes. This section focuses on and only briefly outlines key administrative and logistical challenges, it is neither an exhaustive list nor a comprehensive analysis of the issues identified. Asbestos Relief Trust The legal action which preceded the establishment of the Trust resulted in the creation of many expectations amongst claimants in the litigation, which expectations could not be fulfilled after settlement due to the specific mandate provided for in the Deed of Trust. Various demands were received for the payment of moneys citing the following reasons: • Persons who had “lent” their name to the litigation, ie. they were claimants in the legal action, whether or not they met the criteria to claim, were entitled to receive compensation. • Asbestos miners and mining communities were entitled to receive “sorry money” for the activities of the mines. • The legal action was not for damages for the contraction of asbestos related diseases but rather because claimants had worked at or had been exposed to asbestos from the qualifying operations. The Trust is limited to compensating claimants who were exposed to asbestos from the operations of its founders. Therefore not all asbestos operations are covered. There were many asbestos mines, owned by many 8 But only until they have been diagnosed with an occupational lung disease in the 2nd degree eg. asbestos with lung function impairment of 40% and above or mesothelioma.

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diﬀerent entities, which fall outside of the Trust’s compensation parameters. It received many requests for compensation from persons who were exposed to asbestos from these mines who have nowhere to turn. The Trust is often associated with its founders, the mining companies. Former employees often expect the Trust to stand in for and deal with labour related issues which would be the responsibility of these companies. This can lead to distrust and misunderstanding between the Trust and the claimants which it was set up to assist. Claimants most often confuse the statutory benefit system with that of the Trust. Diﬀerences in claims criteria and the claims process can lead to confusion and distrust. Due to the limited funds settled on the Trust and the consequent financial constraints, the Trust is only able to pay for the first set of medical examinations required for claiming. It has neither the funds nor the mandate to finance further medical examinations or a medical surveillance programme for claimants who have not but may in future develop an ARD. As a result, claimants have in the main to rely on often poor and inadequate state health facilities for follow up. Lack of access to post mortem facilities and prevailing cultural views on the removal of organs from the Deceased has meant that the dependants of miners who have died without lodging a claim with the Trust, will in most cases be unable to submit the necessary medical proof that will enable them to qualify for compensation. Reaching out to potential claimants in South Africa and neighbouring countries is costly. Keeping administration costs within acceptable norms whilst providing an accessible service remains a challenge. More so in the face of an increasingly diminishing number of claims being lodged with the Trust. The unknown and unquantifiable future number of potential environmental claims is a potential threat to the financial viability of the Trust. Close monitoring of trends in claims received and assessed as well as the funds by an actuary is essential. Awards are paid in lump sums to claimants with limited financial knowledge and skill to better manage the funds received. Poverty and unemployment play a significant role in how funds are used up. Funds received are in most cases used to meet the most basic requirements such as alleviating hunger, securing housing and furnishing the home. Very little is spent on the management/treatment of ARDs. Statutory Compensation Schemes The key challenges facing the statutory benefit systems are:

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• A lack of awareness amongst former miners of their right to undergo BMEs and to claim with ODMWA, especially in rural communities and outside SA from where a significant number of miners were recruited. • Ineffective claims assessment and processing systems. Backlogs exist in the processing of claims – it can take up to 5 years to receive a result from the OMDWA benefit system. • Inequality between ODMWA and COIDA compensation payments even where the claimants are suffering from the same illness eg. mesothelioma. ODMWA claimants (former miners) receive much lower pay-outs. • Former asbestos miners from neighbouring States are prejudiced by the ODMWA. These miners are covered by ODMWA (provided they worked on South African mines) but there are no assessment and processing facilities in neighbouring states. The responsibility falls on foreign governments to find miners, assess their medical condition and submit claims to South Africa. This places a financial burden on foreign governments. If there is no system for assisting miners to lodge a claim in terms of ODMWA in neighbouring states, they must travel to South Africa for assessment. This places a financial burden on miners who must pay for travel and accommodation. Some may also be too sick to make the journey. Few asbestos sufferers are as a result able to claim compensation • Environmental Victims of Asbestos do not qualify for compensation under ODMWA or COIDA. There is no South African government benefit system that caters for environmental victims of asbestos exposure notwithstanding proposals made at the government-sponsored 1998 Asbestos Summit. Other challenges which impact on the compensation on asbestos victims generally exist, namely: • Rehabilitation of primary and secondary sources of pollution is ongoing but progress is slow. Many former asbestos mining communities living near former mining operation sites continue to be exposed to asbestos pollution and are at a life-long risk of developing ARDs. • Asbestos mining in South Africa stopped in 2001. Companies have ceased to exist or are in the process of winding up. Foreign-owned companies have closed, or head offices are overseas and out of reach of asbestos victims in Southern Africa. Even though Mankayi now enables employees to sue this may have little impact on the situation of future asbestos victims. Successes of the Asbestos Relief Trust To date the Trust has paid out awards totalling some R337 million to over 4200 qualifying claimants9 , many of whom indicated that they had either not 9 Figures are as of 31 August 2013 and include payments made the Kgalagadi Relief Trust, which claims process and administration the Trust manages.

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applied to ODMWA, or were waiting for compensation from ODMWA. The Trust has over the years developed a viable and eﬃcient model for the assessment of claimants and the payment of compensation to qualifying claimants. Through its work the Trust has contributed to raising awareness about the dangers of asbestos exposure amongst former mining communities and the general public. It has also raised awareness of the existence of the statutory benefit system and in many cases, assisted claimants to access their benefits from the state. It has further raised awareness about asbestos related diseases and through its various social responsibility projects, contributed to the up-skilling of doctors in the diagnosis of dust-related lung disease. It introduced a palliative care programme in the Kgalagadi district run by a full time nurse employed by the Trust to provide counselling, care and assistance to cancer suﬀerers, most of whom have been diagnosed with mesothelioma, and their families. Through its advocacy the Trust has raised awareness about primary and secondary sources of pollution which remains a concern in the various former mining areas; raised awareness about the importance of post mortems; contributed to setting up facilities where there were previously none or were dysfunctional; and, provided medical equipment to state hospitals to bolster the service that they provide to claimants and the wider community in which they live and which the hospital services. The Trust has through its work, in spite of the numerous challenges it has faced and continues to face, focused the spotlight on the South African asbestos legacy and the impact it has had on individuals and communities.

Conclusion

Compensating victims of asbestos exposure is important but it will neither cure existing illness nor prevent future illness as a result of continued exposure to asbestos. A more holistic approach to dealing with the South African asbestos legacy is critical. Whilst the Trust has through its activities attempted to address these issues, mainly by highlighting the problems, they are often beyond the Trust’s mandate and financial means to address. Cooperation between all stakeholders to address the challenges is essential to achieve an improved diagnostic services; better understanding and management of ARDs; the rehabilitation of primary and secondary sources of pollution; and, increased education and awareness around the dangers of asbestos.

§3.

261

Bibliography 1. Asbestos Relief Trust Deed of Trust. See : http://www.asbestostrust.co.za/ARTindex.htm 2. Is the ODMW Act Fair? A Comparison of the Occupational Diseases in Mines and Works Amendment Act, 1993 and the Compensation of Occupational Injuries and Diseases Act, 1993 with respect to compensation of Pneumoconiosis. Associate Professor Neil White, May 2004 3. ‘Great Expectations’ Expenditure patterns and assessment of Asbestos Relief Trust compensation awards, Paul Stewart, June 2007 4. Thembekile Mankayi v AngloGold Ashanti Limited (CCT 40/10 [2011] ZACC 3) 5. Parliament of South Africa, Asbestos Summit, Towards More Informed Discussion, Asbestos Working Group for the Parliamentary Portfolio Committee on Environmental Aﬀairs and Tourism, November 1998 6. R. 341 Environment Conservation Act (73/1989): Regulations for the prohibition of the use, manufacturing, import and export of asbestos and asbestos containing materials, Page No: 3, Gazette No: 30904, 28 March 2008 7. The Future of Penge Prospects for People and the Environment, Project Report and Guidelines For the Asbestos Relief Trust, Centre for Sustainability in Mining and Industry (CSMI), July 2008 8. McCulloch, Jock. Asbestos Blues: Labour, Capital, Physicians & the State in South Africa: African Issues, James Currey, Oxford, 2002

Received 24 January 2014

Chapter 19

Compensation for victims of asbestos in France : The principles of the compensation fund for the victims of asbestos by Marie-José VOISIN We present here the principles for the “Fonds d’indemnisation des victimes de l’amiante (FIVA)” (Compensation fund for the victims of asbestos) – an organisation created in France in 2000, responsible for the compensation of people aﬀected by an illness caused by asbestos and, in case of their death, of their family.

1. Compensation for victims before the creation of FIVA Compensation for victims before the creation of FIVA: lengthy procedures leading to an uncertain outcome and partial compensation The compensation fund for the victims of asbestos (FIVA) was established by the Social Security Financing Act of 2001 (article 53 under the Act of 23 December 2000) and following the publication of a decree setting out how the Fund would operate (decree n˚2001-63 dated 23 October 2001). FIVA was created at the request of victims associations1 and following the 1

See the article by Michel Parigot: “Indemnisation des maladies professionnelles: les leçons de l’amiante” (Compensation for occupational diseases: the lessons of asbestos), 2001.

– 263 –

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filing of several hundred compensation claims by the victims before the civil courts, in particular before Social Security courts for “gross negligence of the employer”. Before the creation of FIVA, asbestos victims, whose illness was acknowledged as having an occupational origin, could obtain a very partial compensation for damages. Indeed, the social security systems only give compensation for “permanent partial disability”, meaning the disability of the victim. It is a fixed-sum compensation which only gives compensation for part of the damages caused by an occupational disease. This compensation is in contrast to the “full” compensation of damages, which is where the claimant is “put as far as possible into the situation where he/she would have been if the tort had not been committed” 2 . In order to obtain close to a full compensation for damages, for occupational diseases, you need to prove the “gross negligence of the employer”, which was defined until 2002 as misconduct of “exceptional gravity”, requiring that you prove that the employer was “aware of the hazard” to which he/she exposed his/her employee3 . To initiate a procedure for the recognition of “gross negligence of the employer”, you need first of all to belong to a social security system which allows this procedure,which is not the case for all employees4 . If through this procedure, the “gross negligence of the employer” is acknowledged, you can obtain near-full compensation, although the list of damages liable for compensation are restricted5 . This procedure was hardly used before the victims of asbestos started using it in their hundreds from 1996 onwards, initiating these procedures in cases which were most likely to succeed - namely in businesses using asbestos or big businesses. However, this was far from including all the victims of occupational diseases6 linked to asbestos and did not include victims of environmental or domestic exposure. In the other cases, another approach was used by the victims of asbestos to gain compensation from 1996 until the creation of FIVA: that of compen2

According to the definition of the Council of Europe (Resolution 75/1). See the article by Pierre Sargos, “L’évolution du concept de sécurité au travail et ses conséquences en matière de responsabilité” (The evolution of the concept of safety at work and consequences in matters of liability), 2003. 4 It is the case for 4 out of 5 employees who belong to the general social security system, but not the civil servants – for whom a similar procedure before the administrative courts (based on the responsibility of the administration towards its employees, under the MoyaCaville case law) only exists since 2003 – or the self-employed. 5 Physical and moral damages, damages for loss of enjoyment of life and for disfigurement (see below for the definitions of these damages) 6 We know that a quarter of the victims of mesothelioma come from the building trade, a sector with lots of small businesses (see article by Julian Peto, 1995). 3

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sation before the civil courts, which was possible if you could prove that a criminal oﬀence was at the origin of the disease7 . Beyond the limits already evoked, the judicial process, whether social security courts or not, presents the drawback of being a lengthy process. If you take into account the particularly serious nature of the cancers caused by asbestos, few victims received compensation in their lifetime. The compensation fund for the victims of asbestos was created to overcome the limits of the existing compensation system, in particular to compensate all victims of asbestos in a quick and easy way for all types of damages.

2. A quick and easy compensation for all the victims of asbestos All the victims of asbestos can get compensation through FIVA, whatever the circumstances of their exposure to asbestos: if they are found to suffer from a disease linked to asbestos, they are entitled to compensation by FIVA whether they have been exposed to asbestos in the course of their work (handling asbestos or working in asbestos-riddled premises for example), through environmental exposure (living near an asbestos factory or an asbestos mine), domestic exposure, or even if the origin of the exposure is unknown. The right to compensation is also available to all pathologies, as long as they are linked to asbestos, whether they are cancers (mesothelioma, broncho-pulmonary cancer or another cancer for which you can prove a link with an exposure to asbestos) or minor pathologies (asbestosis, pleural plaques and pleural thickening). FIVA has three possible ways of access to its compensation system: – either the victim is suffering from a disease specific to asbestos: mesothelioma or pleural plaques, – or the victim is suffering from a disease linked to asbestos which has been recognised as an occupational disease, – or the victim is suffering from a disease which is neither specific nor recognised as an occupational disease. One of the principles of compensation by FIVA is, as far as possible, the simplicity of compensation: thus, to cut down on the useless procedures, if the link between pathology and exposure has already been established elsewhere, FIVA does not investigate the case again. So in a case where the person is affected by a disease specific to asbestos, that is a disease which 7

Before the “commissions d’indemnisation de victimes d’infraction (CIVI) (Compensation Commissions for Victims of Oﬀences). This channel was closed when FIVA was created.

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has no known cause other than asbestos, this sole fact is sufficient to prove exposure to asbestos. In this case, to receive compensation by FIVA, you only need to provide a medical certificate attesting to the specific disease which will act as proof of exposure to asbestos. In the same way, if you suffer from a disease recognised as an occupational disease, whatever the disease, you will not be asked to provide further proof of exposure to asbestos other than the decision on the recognition as an occupational disease. Only those who have neither a specific disease nor a disease recognised as an occupational disease – which is the case for example of those who have a broncho-pulmonary cancer of environmental origin or those who have a cancer of the larynx or gastrointestinal cancer – need to prove their exposure to asbestos: their file is then examined by an Evaluation Committee to assess the circumstances of exposure to asbestos and decide whether the disease is linked or not to an exposure to asbestos and whether the claimants can therefore claim compensation from FIVA or not. FIVA is required to make an offer of compensation within six months after receiving all documentary evidence (an admissible file). Indeed, the legislation allows a delay of six months in order to take into account the fact that cancers linked to asbestos are extremely serious diseases. This six months delay was conceived so that victims could receive compensation during their lifetime, in order not to add to the anxiety of the disease, that of the future of their family.

3. The parameters of compensation Compensation of all damages according to the level of disability and age. 3.1.Full compensation for damages by FIVA The Fund will give full compensation for all the damages established by the victims, contrary to what happens in the case of compensation for occupational diseases, when in most cases, the victim only receives compensation for part of the damages. This is referred to as “full compensation” by the Fund as opposed to the “fixed-sum compensation” in the case of occupational diseases. In the case where the victim of asbestos has received no compensation from elsewhere, FIVA pays the full cost of the compensation. In the case where the person suﬀering from a disease linked to asbestos has been exposed in the context of work and has received compensation for part of the damages within the framework of compensation for occupational diseases as

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provided by the social security system, FIVA pays out the remainder of the compensation which has been paid by the occupational diseases scheme. 3.2.Compensation depends on the level of disability and the age of the victim The victim receives compensation according to their level of disability and age. The level of disability, more precisely named the level of “permanent partial disability”, is determined based on medical criteria, according to a medical scale specific to FIVA. In this scale, a level of 5 % is attributed to pleural plaques, 8 % to pleural thickening, a minimum of 10 % to asbestosis, 100 % to mesothelioma and no-surgery lung cancers. The level attributed to minor diseases can vary according to the parameters of the pulmonary function test of the victim. The younger the victim, the higher the compensation. 3.3.Compensation for all damages of the victim and his/her family 3.3.1. Compensation of the victim FIVA will give compensation for any damage which can be established by the victim, whether they be economic or not. FIVA will give compensation for disability damages with a yearly pension which ranges from 471 Euros for pleural plaques to 18 827 Euros8 for a cancer with an estimated 100 % disability9 . FIVA will also give compensation for all the other non-economic damages which the victim can establish: As standard FIVA will oﬀer compensation for moral damages (anxiety linked to the disease), physical damages (physical pains linked to the disease) and damages for loss of enjoyment of life (leisure activities which can no longer be enjoyed because of the disease). If need be, FIVA will also give compensation for disfigurement damages (scars, having to wear an oxygen mask, weight loss...), sexual harm and any other damage of which the victim can demonstrate the existence. Economic damages if substantiated are also compensated, whether they are costs incurred due to the disease (medical costs still to be paid, home alterations...) or potential loss of income linked to the disease. As standard, FIVA will give compensation to the tune of 15 000 Euros for all the moral and physical damages together with the loss of enjoyment of life of a victim aged 65 and suﬀering from pleural plaques. This amount 8 9

Figures from 2013. This pension grows with the level of disability but it is not a linear growth.

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rises up to 108 000 Euros for moral and physical damages together with loss of enjoyment of life for a victim aged 65 suffering from mesothelioma10 . Finally, if the health of the victim deteriorates after a first offer of compensation, FIVA is required to make a new offer to the victim. 3.3.2. Compensation for the family of the victim If the victim could not be compensated in his/her lifetime, the compensation he/she should have received will be paid to his/her beneficiaries (spouse, children, parents, brothers and sisters, grandchildren), under the laws of inheritance11 . Furthermore, the beneficiaries will receive compensation for their own damages, that is the moral damage linked to caring for a family member during illness and his/her loss. The compensation for this damage is made according to the closeness of the relationship of the beneficiary to the deceased. As standard, FIVA will give compensation to the tune of 32 600 Euros for the spouse and 3 300 Euros for the grandchildren. Finally if the spouse suffers economic hardship due to the death of the victim (loss of revenue following the death of the victim), he/she will receive compensation from FIVA. This damage is calculated by comparing the income of the household before and after death, taking into account the composition of the household12 . In order to calculate the income before death, the disability allowance paid because of the illness, will be included in the income. Thus, for a household of two people, if the income after death is below two-thirds of the income before death, FIVA will pay the difference in compensation for economic loss.

FIVA scale. The amount of compensation will then be shared out between the heirs according to the laws of inheritance. 12 The composition of the household is calculated based on the OECD scale where the first adult in the household is assigned a value of 1 (0.5 for fixed costs and 0.5 for him/herself); the second adult or child over 15 years of age is assigned a value of 0.5 and the children under 15 are assigned the value of 0.3. A comparison is then made between the composition of the household before and after the death of the victim: so for a household of two adults, you go from a composition before death of 1.5 to 1 after death; there is then an economic loss if the income after death is below 1/1,5 of the income (or two-thirds) after death. In a household with two adults and one child under 15 before death, you go from a household composition of 1.8 before death to a composition of 1.3 after death; there is then economic loss if the household income after death is below 1.3/1.8 (or 72 %) of the household income before death, etc. 11

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3.4.The structure of FIVA with the other possibilities of compensation As we have seen, if another compensation has already been paid for only part of the damages suffered by the victim, FIVA will pay the remainder to reach a full compensation of the damages. This is the case for the victims recognised as suffering an occupational disease, who might receive part compensation from their social security scheme in the private sector or from their employer in the public sector. In the case when the victim can obtain almost full compensation for damages (where there is gross misconduct by the employer), he/she has a choice between receiving compensation from FIVA or obtaining compensation following a procedure before social security courts13 . If there is a recognised cause of the disease being compensated, FIVA is required to replace the victim in order to recover from the person in charge, the amount of compensation paid. In 2012, FIVA recovered 25 million Euros this way. A victim who estimates that the compensation awarded by FIVA is inadequate can appeal against the offer made by FIVA before a court of appeal. FIVA must then pay the amount offered as provision, until the appeal procedure reaches its conclusion. Finally receiving compensation by FIVA does not otherwise preclude filing a complaint before a criminal court to establish liability.

4. The management of FIVA FIVA is managed by a board of directors which includes representatives from the State, victim associations, unions of employees and employers as well as qualified personalities. FIVA’s expenses are financed by the State and by employers. Since its creation in 2002, FIVA has dealt with 76 350 compensation claims, which means an average of 7635 claims per year for the period 2003-2012, 2002 being an atypical year due to the setting up of the Fund: these are claims relating to new victims, each victim being able to file several claims, for example in case of deteriorating health (see chart 1, next page).

13 In public oﬃce where this type of procedure exist, it is brought before administrative tribunals.

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Chart 1. Evolution of the number of compensation claims received by FIVA, 2002–2012.

! Chart 2. Evolution of the total yearly amount of compensation paid by FIVA, 2002–2012, in million Euros.

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In 2012, 70 % of the victims received compensation because their illness was occupational in origin, 14 % because they had a disease specific to asbestos and 16 % after examination by the Exposure Evaluation Board. At the time when the figures were compiled in 2012, among the victims whose pathology was known, 61.9 % were suﬀering from pleural plaques or pleural thickening, 12.3 % from mesothelioma, 20.4 % from bronchopulmonary cancer and 5.4 % from asbestosis. The compensation costs paid by FIVA since its creation amount to 3524 million Euros, that is an average of 371 million Euros per year for the period 2004-2012, excluding the two atypical years when the Funds was being set up (see Chart 2). Received 23 December 2013 Translated from French by Fleur Pettie Bibliography 1. Article 53 de la loi n˚2000-1257 du 23 décembre 2000 de financement de la protection sociale pour 2001, http://www.legifrance.gouv.fr 2. Décret n˚2001-63 du 23 octobre 2001 relatif au fonds d’indemnisation des victimes de l’amiante, http://www.legifrance.gouv.fr 3. 12e rapport d’activité au parlement et au gouvernement, FIVA, 2012, http://www.FIVA.fr 4. Lambert Faivre Y., Porchy-Simon S., Droit du dommage corporel – Systèmes d’indemnisation, Précis Dalloz, 6e édition, 2009 5. Mbarga A., L’indemnisation publique des victimes d’infraction, L’Harmattan, 2000 6. Parigot M., « Indemnisation des maladies professionnelles : les leçons de l’amiante », La Revue Juridique d’Auvergne, hors série, 2001, Les presses universitaires de la faculté de droit université d’Auvergne, pp. 171-184 7. Peto J., Hodgson JT., Matthews FE., Jones JR., « Continuing increase in mesothelioma mortality in Britain », The Lancet, 1995, vol. 345, pp. 535-579, 8. Sargos P., « L’évolution du concept de sécurité au travail et ses conséquences en matière de responsabilité », La semaine juridique, édition générale, 22 janvier 2003, n˚4.

Chapter 20

Asbestos in the Netherlands by Tinka de BRUIN The widespread use of asbestos in the Netherlands has had its consequences; thousands have died from asbestos-related diseases after working with asbestos or asbestos-containing products, sharing a home with relatives who had been occupationally exposed to asbestos, or living in the neighborhood of asbestos consuming factories.

1. The situation in 2012 in the Netherlands Let’s start with some figures. On a population of 16.7 million, annually, we have over 500 asbestos victims with mesothelioma and 900 with asbestos related lung cancer. The number of people with recognized asbestosis is low: from 10 to 20 new cases each year. We have many questions about this low number. The first known victim of asbestos in the Netherlands was recognized in 1930. The link between asbestos and lung cancer was confirmed in 1942 and the first victims of mesothelioma appeared in the medical literature during the 1950s. It was, however, 1977 before a worker aﬀected by an asbestosrelated illness claimed compensation from his employer. Since 1977, there has been an unbroken series of court cases brought against employers and producers. To this day, victims of asbestos are forced to go to court to receive compensation for the damages caused to them. In 1995, on the initiative of the Socialist Party, the Asbestos Victims’ Committee was established. This committee was an immediate success and answered a pressing need: in the first year after its establishment, 600 victims and their relatives went to the Committee for advice and assistance. With the support of the Committee, financial aid from the Socialist Party and the – 273 –

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assistance of scientific experts, numerous legal actions were taken against employers, of which Eternit was one of the most important. In more and more cases, the employers were held liable and were ordered to pay compensation for both material and non-material damages. The amount awarded to victims of mesothelioma in the 1990s was e40,000, increasing after 2000 to e50,000. The position of asbestos victims attracted growing attention in the media, while the Socialist Party continually ensured that the whole spectrum of asbestos problems and the issue of the victims remained on the agenda. The Committee became the voice of the Dutch asbestos victims. And we still exists; our work is not yet done. The aims of the Committee are: - shortening the so called "legal agony of asbestos victims" - obtaining recognition and compensation for all the victims - achieving a compensation fund for all asbestos victims. Now, some of you will say “but there is a compensation fund in the Netherlands”.

2. The Dutch compensation fund In 2000, the Institute for Asbestos Victims was set up with the cooperation of the Government, our Committee, trade unions, employers and insurers to streamline the compensation process. If a mesothelioma is diagnosed, compensation can be obtained through this Institute in a relatively short time. A government-funded scheme, introduced in 2003, will pay a lump sum of 18,000 euros to patients diagnosed with mesothelioma. These payments may only be made to living people, not on their behalf after they have died. After this payment, the Institute starts mediation between the victim and the employer. Now in 2012, we have to answer the question : Is the Dutch Institute for Asbestos Victims a socially and responsible solution? Our answer to this question is NO. Mediation by the Institute is not the solution. After mediation only 40% of the victims receive full compensation. Or, in better words, 60% of the mesothelioma victims only gets a payment of 18.000 euros paid by the Dutch Government. After that payment mediation stops and long court cases are waiting. Our committee always asked for full compensation for all the asbestos victims. So, nowadays the legal agony of asbestos victims still continues. As a conclusion I have to ask your attention for International Solidarity. The battle isn’t over yet. Experts predict that the silent killer asbestos will continue its work over the next thirty years. Asbestos is not just a Dutch

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or a European problem; multinational companies are exporting asbestos to countries where social and health protection is not as developed as in Europe. Only a world wide ban on asbestos can stop this evil. We need to make sure that all of these victims will receive medical health and full compensation. That will take a lot of effort and persistence and in my opinion the only way we can reach this goal is by creating a strong and solid organization to aid victims, both nationally and internationally, in their struggle for compensation. And last but not least: we have to find an answer to the question: “how can we prevent asbestos exposure and the risk of contracting these deadly diseases for future generations?” Received 22 January 2013 References accessible online 1) Dutch Committee of Asbestos Victims – Comité Asbestslachtoffers http://www.comiteasbestslachtoffers.nl 2) Tribune : Asbest eist meer slachtoffers dan het verkeer, April 2010 www.sp.nl/nieuws/tribune/201004/asbest eist meer slachtoffers dan het verkeer.shtml

Chapter 21

Asbestos and Belgium – Eternit and Justice by Eric JONCKHEERE My name is Eric Jonckheere and I am a Belgian citizen. I am going to tell you about my personal experience with asbestos which matches that of my country.

1. Kapelle – Belgium My country has the unfortunate honour of being the top country for consumption of asbestos per capita in the world. It was at its highest between the 50s and the 90s, with a peak in the 60s and 70s. This is when mesothelioma increased. This is also the era of increasing mobilisation by associations in some countries. Information on the harmful eﬀects of asbestos finally spread and led to its progressive banning. In Belgium, banning of this poison was only eﬀective from 1998 which is among the last in Europe. These unenviable records are due to the presence in Belgium of the Emsens family, which holds the patent for asbestos-cement: Eternit. You might have read that these were the largest asbestos-cement factories in the world! Our house was situated below their chimneys. My father worked there as an executive until his death in 1987 as a result of mesothelioma. This death, the first in the family, threw a doubt into our hitherto untroubled world, which for us was close to a paradise. In the area, Eternit was THE big company, paternalistic, financing numerous undertakings in the town, exercising a strong influence on the local representatives from all political parties and all local notabilities. While we thought we lived in a paradise, we never imagined to what extent Kapelle and Belgium were at the heart of the global organisation – 277 –

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of the asbestos-cement industry and asbestos in general. Taking part in conferences like this one made me aware of how much strategy choices made a stone throw from our house had a negative impact on millions of people’s lives.

Map of asbestos victims in Kapelle-op-den-Bos. Black dots: tional victims; Orange dots: environmental victims

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When faced with the increasing number of sick workers, the multinational Eternit introduced from 2000 onwards a system of private compensation for its workers and pensioners. Those with mesothelioma received the sum of 42000 Euros on top of state compensation. This settlement was then extended to family members in 2001 and to environmental victims in 2006. After my mother discovered she suﬀered from mesothelioma, she was approached by the Eternit directors to agree to such a settlement. Eternit sensed her pugnacity and thought to buy her silence this way. Because she wanted to keep her freedom of action and speech, because she knew that the tree hid the forest and she learnt that her 5 sons had also been contaminated, Françoise declined the oﬀer and launched civil proceedings against my father’s ex-employer. She just found having to keep silent to her grave unbearable. Strangely enough, the trial which saw Eternit receive a heavy sentence was the very first legal action taken against the multinational in Belgium. As it used to be in Casale and is nowadays in Asbestos, silence is golden, the code of silence weighs on my native village. Eternit decided to appeal.

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Françoise died in 2000. Unfortunately, exactly as she feared, two of my brothers also lost their lives in 2003 and then 2009, both struck by mesothelioma. Françoise Jonckheere (1933–2000) who died of mesothelioma

The Jonckheere family – four members who died of mesothelioma

2. Creation of ABEVA It happened to us, but are we the tip of the iceberg in the area? Apart from a few journalists who tried to denounce the future health disasters,

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there existed no victims association, no spearhead to denounce the hazards of asbestos or the shameless actions of a powerful lobby or ensure the victims were heard. My mother participated with another victim in the creation of Abeva, the Belgian Asbestos Victims Association1 . It was established in May 2000, two months before she died. In a federalised Belgium, it suﬀers from lack of funds because it wants to be bilingual. The particularities of my country are such that the exact number of mesothelioma, of occupational or environmental origin, is not easily available and is often under-estimated because it is still today sometimes badly recorded. The 1st of April 2007 saw the launch in Belgium of a compensation fund for asbestos victims, the AFA. Abeva concentrated all its resources in the creation of a compensation system for all the victims whether of occupational or environmental origin, whether private individuals or members of the Armed Forces because most could not benefit from the Fonds des Maladies Professionnelles or FMP (Belgian Fund for Occupational Diseases). Here again, the management and asbestos lobby succeeded in preserving their immunity, in exchange for a modest contribution towards the financing of the Fund. The mechanism adopted also presents two important inconsistencies. The victims of lung cancer due to asbestos cannot benefit from the Fund but they are acknowledged by the FMP. The non-occupational victims, the private individuals and their dependants receive an overall compensation lesser than those from the FMP. As soon as the new Fund was launched, Eternit cancelled his private system of compensation. Here again, it transferred its costs to the community. It can only outrage us but the Fund is still a great progress because it allows the compensation of many victims from companies which have disappeared. Even after production stopped, the influence of the asbestos lobby remains indisputable. The number of asbestos victims in Belgium remains undetermined, there is a lack of will for precise epidemiological studies. In the area of Kapelle, silence still prevails. We know in any case, that for the whole country, there are between 700 and 1000 asbestos victims per year. Last November, I paid for an analysis of the soil in what used to be our garden. The analyses revealed levels of asbestos 5 times above the acceptable limit. It was not really a surprise but what was surprising was that Ovam, the body responsible for the clean-up, for the first time passed the whole cost on to Eternit. As a result of such observations, it is not surprising to count 9 mesothelioma in our street at the end of the village, only 400m long. Only 4 are of occupational origin. With my friends from Abeva, we wish to put forward a fundamental demand for research in the treatment of 1

ABEVA; asbl/vzw – Association Belge des Victimes de l’Amiante; Asbest in België: Vereniging van Asbestslachtoﬀers : http://www.abeva.be

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mesothelioma which is still incurable. And that the tragedy we lived through does not repeat itself elsewhere. That the victims from emerging countries benefit from the progress that we, here, have been able to make. In particular Abeva has put forward the following demands: 1) Compensate all occupational and non-occupational victims. 2) Although it can be due to several causes, lung cancer does not entitle the sufferer to compensation from the Asbestos fund, even where exposure to asbestos has been established. It is unjust especially when the victim is taken care of by the FMP. 3) The creation of a “green” phone number to provide listening and direct some demands towards relevant departments or services. 4) Help prevention of contamination. Encourage preventive action so that the young of today do not become the victims of tomorrow. 5) Ensure a better training of healthcare professionals. For each of these objectives, make the people responsible contribute, through lawsuits and financing of the compensation funds. The polluter must become the payer. Such are the objectives that our international cooperation must pursue for my family and the friends of Abeva. The judgements in Brussels and Turin in favour of the victims are a sign that times have truly changed. Yes, twelve years may seem a long time but it was a great satisfaction to witness the birth of a network of victims and lawyers who now work hand in hand. The people responsible for these tragedies risk going to prison at last despite their networks or their social rank. These two sentences give the whole world the right to believe that justice triumphs in the end. For that reason, I don’t feel sorry for this noble poisoner who in his twilight years received a heavy sentence of sixteen years behind bars. After all, these accused did they not have to answer for a “permanent environmental and health disaster”? It was acknowledged that they breached the most elementary rules of safety at work. How many deaths and suffering do they have on their conscience? Furthermore, the asbestos promoters pushed their cynicism so far that they opted for absenteeism at both trials in Brussels and in Turin. What indecency, even if they were not obliged to by law! The chairs left empty will remain for me an emblem characteristic of the attitude of the merchants of death: the image of flight and lack of the least ounce of courage for these people who had become barons and millionaires. And I thought that it was following an acknowledged act of courage, that people who had shown a courage without limit were granted nobility, I came to the conclusion that the nobles in these two cases were the victims themselves! Ourselves! What dignity, almost princely, despite the sufferings endured, what grace in unity, almost brotherly, among these usually ordinary people! The elegance could be seen in the communion which was the link between us, no shouts, just a few discreet applause. In Brussels

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as in Turin, there was no wish for vengeance, even if in another time, they would have been hung for less than that. Received 19 October 2013 Translated from French by Fleur Pettie Références 1. L’Humanité, 25 October 2011, by Fanny Doumayrou, Eternit belgique : un premier procès pour lever la chape d’amiante. http://www.humanite.fr/social-eco/eternit-belgique-un-premier-procespour-lever-la-chape-d%E2%80%99amiante-484779 2. Journal de l’environnement, 28 November 2011, by Geneviève De Lacour Procès de l’amiante en Belgique: Eternit condamnée. http://www.journaldelenvironnement.net/article/proces-de-l-amiante-enbelgique-eternit-condamnee,26172 3. Myeurop, 28 November 2011, by Gaspard Sebag, Eternit: l’amiante condamnée en Belgique. http://fr.myeurop.info/2011/11/28/eternit-lamiante-condamnee-en-belgique-3956 4. Yvonne Waterman. Belgian family wins historic court case against Eternit. In Eternit and the Great Asbestos Trial, IBAS, 2012. http://www.ibasecretariat.org/eternit-great-asbestos-trial-chap-16.pdf 5. Eric Jonckheere. Ma guerre contre l’amiante. Ed. La boîte à Pandore, 2013.

Chapter 22

Trade Unions and the Federal Environment Agency – Instigators of an Asbestos Ban in Germany by Gerd ALBRACHT German Trade Unions and the Federal Environment Agency have been the instigators of an asbestos ban in Germany. We describe the main features of this story and put it in perspective.

1. A lethal hazard ignored for decades. Approaches to the killer dust in recent decades should be regarded as a prime example of a fatal oversight and a general failure on the part of senior company managers in the asbestos industry and politicians with responsibilities in this field. Back in the 1920s, US doctors discovered that asbestos could cause the scarring of the lung tissue, otherwise known as asbestosis. The first cases of occupational diseases in asbestos workers were described in Hoﬀman’s comprehensive Monograph (Hoﬀman 1918). However, it was not company managers or politicians, but instead insurance companies that reacted to this development. The Prudential Insurance Company in the United States refused, as early as 1919, to provide life insurance to asbestos workers (Albracht 1991). In Germany, it was not until 1936 that asbestosis was recognised as an occupational disease. In the early 1940s, it was demonstrated that working with asbestos increased the risk of lung cancer. Finally, in the 1960s, proof – 283 –

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of the link between asbestos and the development of mesothelioma of the pleura and peritoneum was demonstrated. Asbestos-related lung cancer and asbestos-related mesothelioma have been recognised as occupational diseases in Germany since 1943 and 1976 respectively. Despite knowledge of this lethal hazard, asbestos consumption in the 1960 and 1970s doubled in Germany. By 1990, 18 million tonnes of construction materials, comprising around 6% of highly asbestos-containing materials, had been manufactured and used (IG-BSE 1991). No one in a position of responsibility at that time can claim that they were not aware of the health risks. Very early on, the English- and German-speaking trade press had warned of the time bomb that was ticking away in factories and tradesmen’s workshops (Selikoff 1976). The former Minister of Social Affairs for the State of Hesse, Armin Clauss, speaking in 1985 at the first Symposium on the Longterm Effects of Asbestos, declared that “occupational health and safety policy in this field had pretty much been a complete failure well into the 1960s. This criticism is directed in equal measure at companies, employers’ liability insurance associations and state labour inspectorates” (Albracht 1985). Completely non-binding initial recommendations designed to control the adverse effects of asbestos were issued to companies by the employers’ liability insurance associations in the early 1960s. The first technical guideline concentration value (TRK value) for asbestos was published in 1973. Enhanced efforts by the state labour inspectorate and the employers’ liability insurance associations in the 1970s helped to significantly reduce asbestos exposure levels in companies. However, it was only 40 to 50 years after the discovery of this health hazard that State bodies and the employers’ liability insurance associations started to react in any significant way. By then, trade unions and some researchers had already, at an earlier stage, issued warnings and called for measures to be taken. But, even within the trade unions, there was opposition in the 1970s to tackling asbestos. In 1979, several works councils from the asbestos cement industry successfully lobbied the federal government to prevent a ban on asbestos and the listing of asbestos in the highest hazard class (Pütz 1991). Their main argument was the fear of job losses.

2. Trade unions and Environment Agency - Trade unions and the Federal Environment Agency pulling in the same direction – in favour of an asbestos ban In particular, it was trade unions and independent researchers at the German Research Foundation (DFG), which had set up an ad hoc working group in the 1970s under the responsibility of Professor Henschler and

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chaired by Professor Woitowitz, that continued to highlight the lethal hazard posed by the manufacture and handling of asbestos (Partikel 1980). At that time, the media were focusing increasingly on the issue of asbestos. In 1976, IG Metall published an in-depth report on the dangers of asbestos and presented the results of a paper presented by Professor Selikoff at the International Metalworkers’ Federation (IMF) Conference in Oslo on the issue of asbestos-related diseases in the United States from 1918-1975. The asbestos industry decided to try to ward off the increasingly fierce attacks on the hazardous substance that is asbestos by financing its own research institute. The aim was to improve its image and “to avoid an asbestos-related health hazard by coordinating appropriate measures.” At the outset, the companies gave the Asbestos Institute for Occupational Health and Safety and Environmental Protection, which had its head office in Neuss, a budget of DM 2.5 million. Leading occupational health and safety experts and trade unionists refused to support the Institute, even though, in truth, it did want to ensure safer use of asbestos. Developments at the Federal Environment Agency (UBA) and within trade unions in subsequent years contributed to significantly checking the intended industry-friendly impact of the Institute. In 1980, the Swiss industrialist Stephan Schmidheiny, who was the leader of the biggest European asbestos cartel, still generated 90% of his profits from asbestos. Therefore, the report of the Federal Environment Agency on the lethal hazard posed by asbestos, which was published at the end of 1980, hit the nerve centre of the asbestos lobby at Eternit AG in Berlin like a bombshell (UBA 1980). On 19 January 1981, the Minister for the Environment Gerhart Baum (FDP party) called for restrictions on asbestos use, as well as for “an outright ban in some areas”. Within a few weeks, Eternit witnessed a two-digit fall in its turnover in the wake of this warning call. The company made over 1,000 staff redundant at the start of the 1980s. It was like an earthquake hitting the company, according to Lehmann, the then CEO of Eternit AG. As a result, Schmidheiny used all his might to thwart the impending asbestos ban, particularly by playing the threat of job losses off against environmental and health considerations and by falsely suggesting that no substitutes were available. The work of the asbestos lobby paid dividends. Environment Minister Gerhart Baum decided a few months later to postpone a proposed ban on asbestos cement products for a further five to 10 years. Until then, stringent labelling requirements would ensure that people were protected from asbestos-related cancer.

3. Eternit buys researchers Meanwhile Eternit buys researchers and a vast lobby is working in Germany and across the world

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Even before its publication, the Federal Environment Agency’s report had triggered a great deal of activity within the asbestos lobby under the leadership of Eternit. Angry letters were sent to the competent state authorities and to the trade unions. Eternit, the leading company in the asbestos sector, found an important ally in its attempts to delay policy. This ally was none other than the Berlin-based Federal Health Agency (BGA), which opted not to vote in favour of health protection, but rather to protect the economic interests of the asbestos industry. There ensued a fierce war between experts, involving leading figures from the trade unions, the Federal Environment Agency and a number of independent researchers from the German Research Foundation (DFG), such as Professor Woitowitz, Professor Henschler, Professor Pott and Professor Norpoth. The environmental impact of asbestos is equivalent to smoking “ten cigarettes a year” was the astounding assertion made by the highest-ranking federal public health administrator in Germany. How the asbestos industry successfully defended its interests becomes clear when you read the 1989 preliminary report of the Federal Court of Auditors. According to the report, the industry, particularly Eternit, had for years been making significant donations to the department of the Federal Health Agency responsible for analysing the presence of asbestos in drinking water (publication in the journal DER SPIEGEL, 37/1989). The Court of Auditors noted that almost all asbestos research projects carried out by the Federal Health Agency had received funding from Eternit and that there was proof that the asbestos industry had also bought other senior researchers who had been commissioned to carry out such research studies (Federal Court of Auditors 1989). The asbestos industry, headed by its market leader Eternit, ignored, kept quiet about and played down the lethal hazard posed by asbestos for decades. Its political clout can be ascribed to its international dimension. In order to foster its interests, it had set up a powerful trade body in the 1970s called the Asbestos Information Association (AIA). Asbestos mining companies, manufacturers and the processing industry were all equally represented in the association, which coordinated its interests in over 35 countries. The main goal of the AIA was to secure asbestos production in the future. In 1971, a secret conference bringing together AIA members from almost all European countries had been convened in London. The confidential minutes of the conference (which was attended by Eternit and members of the asbestos association) reveal that the conference was not a knowledge-building exercise, but instead was solely devoted to discussing how the threat of future limitations on asbestos use or outright bans could be prevented, while there was no talk of asbestos worker or public health protection. The Chrysotile Institute in Montreal played a central role in this process. Its core task was

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the promotion and global defence of the lie that asbestos can be used safely. In light of the hundreds of thousands of asbestos-related deaths across the world, the following statement by George McCammon, the former President of the Institute, sounds positively inhuman: “Asbestos helps to protect the poor. It would be immoral of us to deny them this protection.” The goal of lobbyists in Germany was to create an asbestos-friendly climate among the ministers and authorities responsible for such issues as well as within the research community and to prevent the spread of critical opinions (Albracht 1991). One such initiative was the establishment in 1972 of an independent scientific advisory committee for the asbestos industry, which was chaired by Valentin, an industry-friendly occupational health doctor from Erlangen University. The confidential minutes of a 1972 meeting of the AIA thus logically read as follows: “We can safely assume that the (working) group of doctors specialising in asbestosis will not enter into conflict with the five international authorities and that, from now on, no emotional, self-centred, exaggerated and unrealistic approaches in the field of health and environmental hazards will emanate from this group.” The 1979 activity report of the AIA shows how the asbestos lobby managed to disseminate its propaganda on the safe use of asbestos: “Since then both asbestos associations, along with their presidents and their occupational health and safety and environmental experts, have worked almost non-stop to convince the competent ministries, labour inspectorates and employers’ liability insurance associations that bans or specific substitution requirements are not necessary in the light of epidemiological data available in Germany, providing that the technical guideline concentrations are observed, and that they would be damaging to our economy and would threaten the survival of the asbestos industry.” The report goes on to vaunt the fact that they had managed to limit the packaging and labelling requirements in the draft of the chemicals legislation of that time to the raw material asbestos and warded oﬀ attempts to introduce hazard symbols. Particular emphasis is placed on the fact that the industry managed, at that time, to prevent asbestos from being listed in risk category I (very hazardous) of the Hazardous Materials Regulation, and asbestos-containing products from having to be labelled as being carcinogenic. In 1980, the AIA said of the EU: “The EU’s legislative process is very realistic and protracted . . . EC oﬃcials are pragmatic. . . and I’m sure that Industry will be able to live with the outcome” (AIA 1980). This influence was a key reason why the EU clung on for too long to the idea of safe asbestos use and that it was only in 2005 that a general asbestos ban came into force in the EU, despite opposition from EU countries that were mining asbestos at that time, such as Greece and Portugal.

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4. Trade unions lead the way - Trade unions lead the way with calls for the phasing out of asbestos However, the trade unions countered the aggressive lobbying by the asbestos industry with calls for an asbestos ban and by forging close ties between the trade unions IG Chemie, IGM, IG Bau-Steine-Erden, ÖTV, the DGB, the ETUC, international trade union organisations, the German Länder and the Federal Environment Agency. At that time, over 25,000 workers from the chemicals, paper and ceramics sectors were involved in asbestos production and, according to the estimates of the DGB (German Confederation of Trade Unions), up to 1 million workers were exposed either permanently or occasionally to asbestos dust. The hazards posed by asbestos and the scandals surrounding Pentachlorophenol or dioxins led to the Executive Committee of IG Chemie deciding, in 1977, to set up a new Working Environment Department staﬀed with experts in the field. Asbestos thus became a key issue within IG Chemie and a scientific/technical network of people with political responsibilities and independent experts from all relevant fields was thus created. This provided a forum for presenting independent scientific work to decision-makers and trade union representatives at all levels and enabled them to develop a strategy for an asbestos ban. Up until then, at almost all levels within the trade unions – especially the secretaries of the industrial working groups – people had to plough their way through the supposedly latest results of scientific studies, which were almost always produced by researchers who were not independent and who were usually in the pay of industry. A breakthrough in the development of a clear anti-asbestos strategy came in 1981 at a conference organised by IG Chemie, which brought together the works councils from the asbestos-producing and -processing companies, as well as the trade unions IGM, ÖTV, IG Bau-Steine-Erden and others. Up until then, the chairmen of the works councils at Eternit, Fulgorit, Wannit and other companies had felt more like ‘messengers’ of their companies than oﬃcers responsible for protecting worker health and safety. They were often strong advocates of ‘safe asbestos use’. However, the guiding principle of the conference was: All of us, whether those who produce asbestos, or the 100,000 workers who handle asbestos on a daily basis in their companies or workshops, need to be protected from the number one cause of cancer in the workplace. The then chairman of IG Chemie, Karl Hauenschild, declared on 12 February1981 that improved occupational health would not be achieved by appealing to the moral conscience of industry, but instead could only be done through legal measures, collective bargaining agreements and their daily implementation in the workplace. His key message was that, for trade unions

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too, jobs that expose workers to the risk of cancer are not worth fighting for! (Hauenschild 1981). He called for the fight against asbestos to be stepped up and for asbestos to be replaced with non-hazardous products (IG Chemie 1981). A number of angry trade unionists from IG Chemie handed in their membership cards. A headline in DIE ZEIT at that time read: This is the first time that, when faced with a choice between jobs and environmental protection, a trade union has clearly opted for the environment and health protection. Eternit subsequently attempted to drive a wedge between the sectoral experts and the executive committees of the trade unions. Liesel Winkelsträter, the executive committee member responsible for asbestos, and Albracht, the head of IG Chemie’s environment department, were invited on a study visit to Canada by Eternit. Its goal was to show them the excellent health protection levels guaranteed in asbestos mining and to exchange views with the Canadian Chrysotile Institute on recent findings relating to the harmlessness of chyrsotile asbestos. The visit would end with a trip to see the extraordinary natural beauty of Alaska. All paid for by Eternit of course: flight, food and accommodation. IG Chemie responded very clearly that it alone would decide which sources the trade union got its information from and would pay for any resulting trips itself. No further immoral oﬀers of this kind were made.

5. Phased ban and asbestos substitution DGB Programme: Demands for a phased ban and compulsory asbestos substitution Around the same time, the German Confederation of Trade Unions (DGB) adopted its 17-point programme to fight asbestos cancer, thus establishing a cross-industry trade union policy in favour of a full asbestos ban. Its main demand was for asbestos to be listed in Group I (highly hazardous, carcinogenic substances) of the then Hazardous Materials Regulation and for the limit concentration value to be reduced to a tenth of its value at that time. Other demands included a phased ban and compulsory asbestos substitution. An important event in terms of implementation of the common trade union position on a phased asbestos ban was a meeting on 23 July1981 in Munich between the Federal Executive Committees of DGB, IG Chemie and IG Bau-Steine-Erden, the Asbestos Cement Trade Association (Wirtschaftsverband Asbestzement e.V), members of the Board of Directors of Eternit AG, the Employers’ Association for the Chemical Industry (Arbeitsring Chemie), the Confederation of German Employers’ Associations (BDA) and the Bavarian Employers’ Liability Insurance Association on the issue of asbestos substitution and the transition to asbestos-free materials. The trade union representatives accused the asbestos cement industry of failing in the past to

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promote asbestos substitution sufficiently enthusiastically or intensely despite the growing number of asbestos victims. At the meeting, they defended their joint position on a comprehensive, phased asbestos ban (DGB 1981). Their calls for an asbestos ban at that time were putting the federal government under pressure, as Gerhart Baum (FDP), then Interior Minister and responsible for environmental protection, had changed his initial stance and called the environment agency to heel. Herbert Ehrenberg (SPD), the minister in charge of occupational health and safety, regarded employment to be more important than worker health. He had received a letter from Eternit’s works council warning of thousands of job losses. The minister responded as follows: “I am of the opinion that a general ban on asbestos is not feasible due to the threats to jobs that this would entail.” The federal government’s stance gave a fresh boost to the asbestos lobby and, particularly, to its market leader and it proceeded to inundate trade union executive committees and trade union officials at all regional and local levels week after week with the results of new studies by researchers and institutes working for or close to industry. Their aim was to ensure that the call for a ban made by trade unions, especially by IG Chemie, did not come to fruition or was watered down. All the claims, postulates, statements, theses and slogans used by the asbestos industry and their so-called researchers to play down the issue were systematically collected together by IG Chemie in order to clarify the “generally accepted scientific findings relating to asbestos from the fields of occupational medicine and toxicology” (Woitowitz 1983). The Executive Committee called on the Federal Minister and the Committee for Hazardous Substances to take a clear stance on this issue. The questions were so broad-ranging that a working group chaired by Professor Woitowitz worked intensively to answer all the questions. After adoption by the Committee, all subsequent letters received were answered by the chairman on the basis of these findings and the whole organisation, including all the administrative units, was notified of them. The results could be seen after a couple of weeks: the warning letters from the asbestos industry stopped arriving and, for the trade unions and the works councils, this meant there was no turning back from the phasing out of asbestos. The response from the Federal Labour Minister highlighted the hesitant attitude of the federal government of that time. He announced the following: “At a meeting of cabinet heads at the Federal Chancellor’s Office, the representatives of all the Ministers, with the exception of the representative of the Federal Interior Ministry and the President of the Federal Environment Agency, voted against an asbestos ban or stringent restrictions on industrial applications of asbestos” (Woitowitz 1983).

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6. Cornerstones of the subsequent ban on asbestos The joint position of the DGB, IG Chemie, IGM, ÖTV and IG Bau-SteineErden in favour of a phased asbestos ban, the swift compilation of a 10volume catalogue of asbestos substitutes, which was presented to the Committee for Hazardous Substances by Albracht in his capacity as chairman of the Asbestos Substitutes Committee and published by the Federal Environment Agency, as well as the banks’ threat to stop loans to Eternit, hung over the company and the asbestos cement industry like a Damocles’ sword1 . In early 1982, the asbestos cement industry, which accounted for around 80% of asbestos consumption at that time, declared that it would voluntarily agree to reduce asbestos consumption on a step-by-step basis. The innovation programme, which was feted as a successful example of the principle of cooperation in the field of environmental policy, was not merely a willingness to self-regulate, but instead a reaction to the trade unions’ asbestos phase-out policy and the Environment Agency’s report, as well as to criticism of asbestos in the media. For too long Eternit had maintained its strategy of preventing an asbestos ban. This was also emphasised in a confidential study that Eternit’s Board commissioned Hayek Engineering AG from Zurich to carry out in June 1981 (Hayek Engineering 1981). The study basically came to the conclusion that the research and development budget of 1.1% of turnover in 1980 (DM 6.1 million) was wholly insuﬃcient and that Eternit had counted on preventing the ban for too long, without ever putting forward alternatives. The study made it very clear to the Board that it should prepare for a ban on asbestos. It is therefore no wonder that, around that time, following intervention by IG Chemie, which Schmidheiny acted upon, the then chairman of the Board of Eternit in Berlin was forced to resign because he wanted to continue to supply asbestos-containing materials to the Eastern Bloc, while at the same time supplying Western Europe with asbestos-free materials. The trade unions’ clear stance in favour of the phasing out of asbestos and the active support of thousands of works councils, which were committed to improving occupational health and safety and called for the use of 1

In order to prepare the 10-volume catalogue of asbestos substitutes, Albracht G., together with Hoﬀmann, E.(chairman of the asbestos working group), held a large number of hearings with representatives from trade unions, public authorities, employers’ liability insurance associations and industries that process asbestos, asbestos-containing materials or substitute substances. The catalogue, which took account of the deliberations of the sub-group on use restrictions/substitutes, was adopted by the Committee for Hazardous Substances in December 1984 and was published within the framework of the Batelle research project entitled “Survey of commercially available substitutes for asbestos and asbestos-containing materials”, which was run by Poeschel, E. and Köhlinga, A. and sponsored by the Federal Environment Agency. In 1985, for the information of all employers, the Federation of Employers’ Liability Associations for the Industrial Sector (Hauptverband der gewerblichen Berufsgenossenschaften e.V) published the catalogue of asbestos substitutes in its scientific journal.

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asbestos substitutes, helped to build up significant pressure, which eventually led Eternit to move to asbestos-free materials for all its products in Germany earlier than planned2 . A good example of this commitment is the fight waged by the members of the works council at Bremer Vulcan. Asbestos had been a key issue since 1974 thanks to IGM. As early as 1968, the local labour inspectorate had informed the company’s management about the dangers posed by asbestos. The works council went through the whole shipyard (ship building yard, maintenance and repair workshops, etc.) with a fine toothcomb, overseeing procedures and products to check whether they contained asbestos or not. The asbestos issue was discussed in working groups, in the company’s newspaper, Echolot, and at meetings of employees and shop stewards and possible solutions were developed. Despite the shipyard crisis, in 1983 the workers had refused to overhaul the asbestos-riddled United States. “We’d rather sign on than die!” they said. The chairman of the works council was dismissed, but, with the help of IGM, he eventually won his court case against the company.

7. Each year the ban is postponed - Each year the ban is postponed and thousands more people fall victim to asbestos In Germany, the share of asbestos-related diseases in 1980 stood at only 1.5%, whereas by 2000 this figure had risen to almost 20%. The death toll is also alarming: in 1980, 65 workers died as a result of an asbestos-related occupational disease; by 2004, this figure had risen to 1,130, making asbestos by far the most frequent cause of death among occupational diseases. Currently, in Germany, more workers die as a result of asbestos than as a result of workrelated accidents. Since 1978, the employers’ liability insurance associations have recorded over 27,000 asbestos-related deaths. Experts from the German Statutory Accident Insurance Association (DGUV) estimate that there are around 190,000 people suffering from asbestos-related diseases (Breuer 2005). According to the latest figures provided by the statistics unit of the DGUV, 1,292 people died from asbestos-related diseases in 2010, and this figure is based on recognised cases only. In addition to the many asbestos-related deaths, the suffering of relatives and the health traumas experienced by many asbestos sufferers, the social and economic repercussions are also huge. As early as 1991, Albracht estimated that the economic cost to Germany of the compensated cases of asbestos-related occupational diseases (4,974 cases from1950-1989) 2

See also: Der Kampf gegen Asbest auf dem Bremer Vulkan!: http://www.labourcom.uni-bremen.de/ak-alternative fertigung/rundbrf/rundbrf/ rund012/s014-asbest012.html

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amounted to DM 7.5 million, without counting the asbestos removal costs. The amount of benefits paid out by the DGUV since 2003 as a result of asbestos-related occupational diseases amounts to over e300 million per year. Since 2010, the DGUV has incurred overall asbestos-related costs of over e10 billion in the form of long-term compensation and rehabilitation payments. The economic researcher Werner Schulz estimates that, based on the calculations made at the Environment Agency, the bottom line of a cost-benefit analysis of asbestos use would show a negative figure. A fairly up-to-date overview of information relating to cancer in Germany can be found in Butz’s publication on work-related cancer for the period 1978 – 2010 (Butz 2012). Of the 40,555 cases of work-related cancer (1978 - 2010), 30,271, according to the publication, were due to asbestos (74.64%). As regards BK4104 (lung cancers, including laryngeal carcinoma), Butz gives the following interpretation: “As regards BK 4104, the increase in the incidence of this BK is marked by the introduction of the fibre-years model in 1993”. The modified rule led to a significant increase in the number of recognised cases. Since Professor Tannapfel took over in 2006, we have seen a renewed downward trend to the detriment of asbestos victims. In 2010, of the 3,765 cases recorded, only 721 were recognised and 643 compensated (BauA 2010). In other words, recognition is refused in 80% of cases! Independent researchers, trade unions, media and politicians have criticised the approach taken by the Mesothelioma Register, which is part of the Bergmannsheil teaching hospital at the Ruhr-University Bochum. It is, however, given significant funding by the DGUV. In 1984, H. Otto, Dortmund, set a figure of 1,000 asbestos particles for defining minimal asbestosis. Even when the register was transferred to Bochum, this principle, which had never been scientifically substantiated, continued to be routinely used as the basis for several tens of thousands of expert opinions produced by employers’ liability insurance associations. In the meantime, the use of the mesothelioma register to check that a disease can be qualified as a BK, along with the application of the ‘asbestos particle’ exclusion criteria, has become the standard used by employers’ liability insurance associations, even when the diagnosis has been confirmed and a technical assessment has established that the occupational pre-conditions for recognition of an asbestosis or an asbestosrelated lung cancer have been met. Non-recognition of a minimal asbestosis is a frequent reason given for refusing to recognise a BK4103 ‘asbestosis’ and, especially, for refusing to recognise a BK 4104 ‘asbestos-related lung cancer’. In Germany, each year, 800 to 1,000 cases of asbestos-related lung cancer are refused recognition as occupational diseases even though they meet the recognition criteria of generally accepted medical standards (Woitowitz in Eurogip 2006). Woitowitz reaches this conclusion on the basis of a suﬃciently reliable assessment of the data. He works on the premise that, broadly speaking in

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the field of occupational medicine, the ratio of mesothelioma cases to cases of asbestos-related lung cancer in society is roughly 1:2, as was demonstrated by McDonald in 1981. Recognition rates in France and the United States are in line with this ratio. However, recognition rates in Germany show a disparity. From the point of view of asbestos victims and their families, the assessment and recognition/non-recognition procedure for this occupational disease is, in many cases, perceived as torturously long and demeaning and often ends in disappointment (ARD 2005).

8. Learning from the asbestos tragedy Learning from the asbestos tragedy – Reducing the risk of cancer in the workplace The gruesome failures of asbestos management and the human tragedies, as well as the long-term effects of asbestos, must also lead us to take a critical view of the over one hundred other carcinogenic substances. Even very hazardous carcinogenic substances, such as benzol, thousands of tonnes of which are produced and processed each year, have not been appropriately assessed in Germany. This is despite the fact that, back in 1981, the German Research Foundation published its work-related cancer study in order to tackle the problem of work-related cancer using new scientific methods based on an innovative analysis for estimating cancer mortality risk among workers. The authors came to the conclusion that “some 25% of all tumours developed by workers can be ascribed to work-related influences” (Horbach et al. 1981). The many asbestos deaths, including in Germany, and the suffering of thousands of asbestos victims are a wake-up call for timely, scientifically sound studies of carcinogens to be conducted and for swift measures, such as restrictions on use or bans, to be taken. By creating the illusion of safe asbestos use, Eternit and the asbestos industry were able to conceal the real extent of the disaster and the suffering for decades. Eternit used the island-like situation of Berlin before the fall of the Wall to obtain subsidies and loans worth millions from federal and regional governments and garner political goodwill. Asbestos sufferers were often paid off in order to circumvent the recognition procedure for occupational diseases. Even the scandal at the company Rex in Baden-Württemberg, where, by the early 1980s, over 100 asbestos-related deaths had occurred, did nothing to change many people’s attitudes to the issue. Quite the opposite in fact: the risks were exported to South Korea and asbestos continued to be produced and often under poorer working and health and safety conditions. Criminal liability provisions were not established, the burden of the consequences was shifted to society or to the statutory insurance system of the employers’ liability insurance associations. On Eternit AG’s homepage,

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not a word about its asbestos past is to be seen. “Chemically clean” is the phrase they use to reflect the priority given by them to environmental and health protection, as well as the sustainable nature of their products and their social responsibility. Not a word about their past mistakes in relation to asbestos use. Credibility has a very different face! The politicians responsible for this issue and the competent authorities, as well as the companies and trade unions, must do their very utmost to ensure that those involved in asbestos removal now and in the future do not become the second wave of asbestos victims. Asbestos removal programmes, based on a public land register and with polluters contributing to the costs, are urgently needed. The discrepancy between the number of reported cases of asbestos-related occupational diseases and the number of compensated cases must not grow any further. The burden of proof should no longer be placed on the very often terminally ill workers. “The soft phasing-out of asbestos is taking too long, is causing too much damage to health and too much suffering among those affected and is costing too much money. This soft transition must be replaced by an emergency brake, in other words a global ban on asbestos production and use” (Minister of State Heide Pfarr in Albracht, 1991). Received 8 February 2013 Translated from German to English by the author

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Bibliography : 1. AIA-Asbestos Information Association (1971) Confidential minutes of the International Conference of Asbestos Information Bodies, London, 24-25 November 1971. 2. AIA-Asbestos Information Association (1980) The Industry´s viewpoint concerning Asbestos. Survey of the Asbestos Scene, London. 3. Albracht, G., Bolm-Audorﬀ, U.and H.J.Woitowitz (1985) Asbestspätschäden, Editor: Social Aﬀairs Minister for the State of Hesse. 4. Albracht, G. and O.A. Schwerdtfeger (1991) Herausforderung Asbest, Universum Verlagsanstalt, Wiesbaden. 5. Albracht, G. (1991) Erkennen und Bewerten von Asbestprodukten in kontaminierten Bereichen. In: Gesundheitsgefahren durch neue Technologien, Fachtagung IG Bau 28.04.1990; Tagungsband IG Bau-SteineErden, Frankfurt/Main. 6. ARD-RBB (April 2005) Rechtlos und hiflos - Wie Todgeweihte mit ihren Ansprüchen an die Berufsgenossenschaften scheitern, television broadcast of 14 April 2005. 7. BauA-Bundesanstalt für Arbeitsschutz und Arbeitsmedizin (2012) Sicherheit und Gesundheit bei der Arbeit 2010, Dortmund. 8. Bundesrechnungshof (1989) Zwischenbericht vom 13.März 1989 und Fassung vom 9. Mai 1989 zur Einflussnahme der Industrie auf Entscheidungen des Bundesgesundheitsamtes. Cf.: Die ertappten Kontrolleure. 9. DIE ZEIT, 28.04.1989, No.18 and Deutscher Bundestag, Drucksache 11/5365 of 10.10.1989. 10. Breuer, J. (2005) Asbest-eine globale Herausforderung, Bundesarbeitsblatt 10. 2005. 11. Butz, M. (2012) Beruflich verursachte Krebserkrankungen, eine Darstellung der im Zeitraum 1978 bis 2010 anerkannten Berufskrankheiten, BKDOK, DGUV-Berlin. 12. DGB (1981) 17-Punkte-Programm gegen Asbestkrebs in der Arbeitswelt. In: DGB-Nachrichtendienst 12.02.1981. 13. EUROGIP (2006) 24/E Enquiry Report, European Forum of the Insurance against Accidents at Work and Occupational Diseases.

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14. Hauenschild, K. (1981) Interview in DGB weekly paper Welt der Arbeit, 29.01.1981. 15. Hayek Engineering (1981) Produkt- und unternehmensstrategische Studie für den Vorstand der Eternit AG. Zurich. 16. Hoffman, F.L. (1918) Mortality from respiratory disease in dusty trades (inorganic dusts). Bulletin of the U.S. Bureau of Labour Statistics No. 231, Washington, D.C. June 1918. 17. Horbach, L. and H. Loskant (1981) Berufskrebsstudie der Deutschen Forschungsgemeinschaft, Harald Boldt Verlag Boppard. 18. G CHEMIE - PAPIER - KERAMIK (1981) Asbestgefahren verstärkt bekämpfen! IG Chemie fordert Ersatz von Asbest durch ungefährliche Stoffe. Pressedienst des Hauptvorstandes. See: Stellungnahme zur Gesamtproblematik "Asbest" des Geschäftsführenden Hauptvorstandes, 23.02.1981 19. Partikel, H. (1980) Krebsrisiko am Arbeitsplatz. Nur die “Spitze des Eisberges." In: Der Gewerkschafter 6/80. 20. Pütz, J. (ed.) (1989) Asbest-Report. Vom Wunderstoff zur Altlast, Cologne. 21. Selikoff, I.J. (1976) Asbestkrankheiten in den Vereinigten Staaten von 1918-1975, IGM-Arbeitssicherheits-Information No. 8/1976; Results of the IMF world conference on occupational health and safety in the metal industry. 22. Umweltbundesamt (1980) Luftqualitätskriterien - Umweltbelastung durch Asbest und andere faserige Feinstäube. UBA-Bericht 7/80. 23. Woitowitz H.J. et al. (1983) Allgemein anerkannte arbeitsmedizinischtoxikologische Erkenntnisse bezüglich Asbest. In: special reprint from Die BG Heft5/83, Erich Schmidt Verlag, Bielefeld.

Chapter 23

Asbestos in Albania: a long history of ignorance and indiﬀerence by Orjana HANXARI and Romeo HANXARI The asbestos topic within the framework of the environmental discourse in Albania is quite recent. While the first asbestos products appeared in Albania in the ‘20s from Italy, and while the asbestos consumption and production increased during the ‘60s and ‘70s, years of the so-called “socialist industrialisation”, the first time the Albanian public heard about the serious health risks from asbestos was in 2006 during the implementation of a small project of the environmental association ANEP (Association on New Environmental Policies), coordinated by the authors of this article. It was a bad surprise for the authors of the study to discover the deep ignorance of the environmental and health care administration of Albania on the topic of asbestos. This short article will try to mark some milestones concerning the asbestos case in Albania.

1. History of asbestos in Albania a. What “eternit” means in the modern Albanian language? In the Albanian language there are three words for the asbestos and asbestos containing products: amiant, azbest, and eternit. The first two words (respectively taken from neo latin languages and Anglo-saxon languages) are both commonly used in Albania, because it depends on who has used the words for the first time and where the Albanian technicians have studied: the Italian speaking technicians will use the word “amiant”, while the English speaking technicians will use the word “azbest”. They are both used actually. – 299 –

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About the use of the word “eternit” by the Albanians, even nowadays if you say “asbestos-cement” to an Albanian he will not understand what you are talking about: an Albanian knows only the term “eternit” for that kind of asbestos containing product. The commercial term “eternit” has become part of the vocabulary of the Albanian language representing the only available word for asbestos-cement. This atypical phenomenon of the creation of this new word comes from the 1920s and 1930s, and is the result of the process of the first contact of the Albanian people with a new industrial product. The asbestos-cement products (especially sheets and pipes) were brought in Albania during the 1920s, and apparently the name Eternit appeared written above the asbestos-cement products: since then this name became a common word for the Albanian people . . . The new word was so much strongly fixed in the Albanian vocabulary that the most absurd thing happened during the 1960s, when the communist Government built up a state-owned factory to produce asbestos-cement sheets and pipes: the Albanian government named it oﬃcially “Factory of eternit” . . . Of course the Eternit international company has never been physically present in Albania, so the Albanians cannot open a trial against it. But nevertheless the main product of this company has been part of the vocabulary of the Albanian Language since the 1920s. b. The overall quantity ever used in Albania According to a recent study, it seems that the overall quantity ever used in Albania in the civil non-military sectors, amounts to at least 188.000 tons of asbestos as raw material or as asbestos used in asbestos containing products. Further studies must be done for asbestos use in the military sector and military infrastructure. This map shows the distribution of the abovementioned quantity in the diﬀerent districts of Albania. We sought to identify the regions of higher health risk: we defined 4 levels based on the quantities of asbestos used during the observation period 1930-1990. High risk areas include those where workers were exposed to asbestos and its related products during construction, maintenance or operation, as well as where local residents may have been exposed to the release of asbestos fibers. There are some areas where the quantity has been higher than in others. This is connected to the level of development of the industries, and to the kind of industries that have been developed in the respective area. For, example, asbestos use has been higher in areas including industries like, the asbestos-cement production, the steel industry, the oil industry, the ship building industry, the chemical industry, the electrical appliances production industry, etc.

Â§1. History of asbestos in Albania

Map nËš 1.

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Quantities of asbestose used in regions of Albania.

c. Early history of asbestos in Albania The tight economical cooperation between Italy and Albania started from 1925, and the presence of Italian capital increased progressively and strongly till 1939 when Italy occupied Albania. This is a period when the production and use of asbestos containing products increased even in Italy. Some of these products were brought in Albania, since the 1920s. One of the first

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products was asbestos-cement sheets, produced by the company “Eternit” in Italy. Asbestos-cement, so called “eternit” in Albania, was probably the first and surely the most common asbestos containing product brought and used in Albania. The Italians had in concession many sectors of the natural resources of Albania, and this is why they built up many industrial and infrastructure buildings, most of them covered with asbestos-cement undulating sheets. Example of this kind of buildings were those of the industries of petroleum, bitumen, chromium, copper, forestry, etc. But other asbestos containing products were also used, like for example the filters in the alimentary and light industry in the sector of the production of drinks and soap. The lists of the supplying materials ordered by the Albanian state administrators and bought by UNRRA1 with the aim to fully restart the old Albanian industries after World War II, show that many of these industries were missing some asbestos containing materials, like asbestos filters, asbestos rope, etc. The products brought by UNRRA were manufactured by Western countries, while in the late 40s the new communist state started to import asbestos containing products and materials exclusively from the new European communist countries like Yugoslavia, Russia, Poland, East Germany, etc. The amount of asbestos used in Albania in the period 1930-1949 is evaluated at around 8.000 tons. d. Asbestos during the communist period of the so called “national industrialisation” During the period 1950-1959 the amount of asbestos used in Albania increased to 30 000 tons overall. Since the 50s the Albanian state started what used to be a typical communist policy: the progressive but firm nationalisation and collectivisation of the economy, and the industrialisation of the country. The old industries, generally small and medium ones, have been nationalised (tobacco, alimentary, construction, and light industries), while some old industries were bought or given for free by Russia, like the textile factories, some thermo electrical power plant, some small hydro power plants, some flour factories, a sugar factory, hundreds of cars and trucks, etc. All of them had asbestos containing products in their technological processes, and this is why the importation of asbestos containing spare parts increased. Other products used during this period, and still in use somehow in Albania, include industrial items, such as textiles for blankets for fire extinguishers or metallurgy workers, asbestos blanket for extinguishing oil fires, ropes, rubber, etc. The quantity of machineries brought from the communist countries increased even during the 50s with the construction of 1 UNRRA : United Nations Relief and Rehabilitation Administration (note from the editors).

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many state owned enterprises and infrastructure for the “agricultural cooperatives” all over the country. The utilisation of asbestos-cement sheets for roofs increased progressively during all this time. Many industrial infrastructures were built up starting from the 50s but especially during the 60s, especially in the field of exploitation of the of the country’s natural resources: all these new buildings were built with asbestoscement roofs, or with “eternit roof” as it is usual to say in Albanian.

Typical small industrial buildings of the ’60 in Albania, covered with “eternit roofs” in Vlora (on the left) and Tropoja (on the right).

This is why, the most wide spread asbestos containing product in Albania has been the asbestos-cement, containing 10-25% of asbestos. The material may be compressed into flat or undulated sheets to build roofs or walls, and can produce a range of other products such as pipes, drains, guttering, conduits, tanks, etc. We can still see today, industrial or military infrastructures built up in the 60s with asbestos-cement roofs. The amount of asbestos used in Albania during the 60s has been evaluated to around 40 000 tons. The increasing need for “eternit sheets” in the Albanian economy, pushed the communist regime to ask Chinese experts to help Albania build a “factory of asbestos-cement products”, named oﬃcially “the factory of eternit”. For all the period 1965-1995 where it was functioning, this factory has used around 60 000 tons of asbestos (imported from China, Yugoslavia, East Germany, etc). It has an annual production capacity of 800.000 m2 asbestos-cement sheets and of 100.000 m of asbestos-cement pipe. During the 70s the Albanian economy kept growing, and so was the amount of asbestos used in the economy: it increased to 55 000 tons. During the 80s the economy fell into a deep crisis, and this is maybe why the same amount of asbestos was used during this period. The consequences of these periods of asbestos use are appearing today in cases of mesotheliomas and other ARDs. Several persons who had started working with asbestos-cement sheets just during the ‘70s or ‘80s, have become mesothelioma patients during the last few years: this shows from the

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questionnaires filled by people diagnosed with this pathology. But, another element appears to be very important for today’s studies about the amount of asbestos used in Albania: the military infrastructure use. From the early 70s, the Albanian military strategy changed radically, shifting to a so-called “need” for protection from all the sides. This brought the “need” to build hundreds of thousands of military refuges for men and equipments: it is still a secret how many tunnels have been built on the Albanian hilly and mountainous areas in the period 1970-1990. It is sure that a huge quantity of asbestos was used during this period in these military infrastructures, but it is hard to find out exactly how much: as a preliminary evaluation we think of some hundreds of thousands of tons of friable and non friable asbestos. Because of the wide use of the “eternit”, the asbestos cement roofs, for almost all the buildings built by the regime, like storehouses, repositories, civil dormitories, stables, farmhouses, homesteads, military dormitories, military storehouses, industrial buildings, etc., this asbestos containing material has been the most common construction material ever used in Albania. This fact is aggravated even by another circumstance. The Albanian families were poor, while the construction materials like the “eternit” were state property, so “nobody’s property”. So, when this was possible, the poorest families, especially in the rural areas, used to steal any piece of eternit for the purpose of covering or separating anything: a part of the house, the hen-house, or the doghouse. This is why we now find eternit in many rural houses in Albania, mostly outdoors but in many cases even indoors. During the period 19661990 the “eternit” has been brought even to the most remote areas of the country, and this is why it now represents the most distributed dangerous material in Albania. We can say that all the territory of Albania is actually a hotspot of asbestos pollution. e. Asbestos after the collapse of the deeply centralised economy The Albanian industry collapsed just after the 1991, because of the centralised method of planning the general economy. The centralised importation of asbestos fibres, as raw material, has been put to an end. But, the importation and consumption of some spare parts products continued. In the meantime, the only factory in the country for the production of asbestoscement, the factory of Eternit in Vlora, kept working till 1994 with a very reduced capacity: they used the amount of asbestos mineral that they had in their storehouse. The production of asbestos cement sheets and pipes passed on to the new private construction enterprises which continued using the same construction materials as before. The number of workers in the factory was reduced, but the technical safety rules for their safety have never changed.

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The ex-factory of eternit, in Vlora in 2005 Even several years after the collapse of the centralised economy, the country still kept needing quantities of asbestos containing products, especially asbestos ropes, asbestos gasket, clutch disks, brake linings, asbestos plaques, etc. Also, consumer products containing asbestos, originating from countries like China, Turkey, Fyrom (Former Yougoslav republic of Macedonia), Serbia, Ukraine, Russia, India, etc., kept entering freely in the country. f. The asbestos containing products still entering in Albania Still there are asbestos containing products imported in Albania mostly from China, Turkey, Serbia, Macedonia, India, Russia, Ukraine, etc. These products are mostly household appliances (wood stoves, cooking stoves, air conditioning, etc), spare parts (asbestos ropes, asbestos plaques, etc), hanging ceiling, etc. In the markets of Tirana, in warehouses and storehouses, many of the above mentioned asbestos containing products are freely merchandised. The picture here below shows a typical asbestos containing product: the wood stove. The door of this kind of stoves has an asbestos rope that must be changed every some months. The asbestos rope is imported from China, while the stoves are imported generally from Serbia, Macedonia, and Turkey: this one on the picture above had been produced on 25 September 2013 in Vranje (Serbia) and has been exported in Albania immediately. The picture was taken on 20 of October 2013 in a storehouse at the most frequented market in Tirana. As it is shown in the â€œwarranty certificateâ€? of the product, this kind of products can be found allover the South-Eastern Europe countries, including a member country of EU like Bulgaria. The problem in Albania is that these cheap stoves are very much requested by a certain part of the Albanian consumers, the most poor of them: this is why it is found in most of the houses of Albanian countrymen. This can be considered as a bomb that will explode very soon, in terms of public health.

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Wood stove with asbestos rope; its warrant certificate

The reasons why these merchandises still can enter in Albania, are several: i) there is no any anti-asbestos Law and/or clear anti-asbestos regulations; ii) the Albanian Customs are considered to be “porous”, generally ; iii) there is no any detailed list of the asbestos containing products to be forbidden at the Customs. So, these reasons bring us to the result that many products can pass the Albanian Customs, even the asbestos generally is forbidden in Albania. ANEP organized long training sessions with custom oﬃcers from several of the country’s customs posts, and the conclusion was that they did not have any information about the asbestos containing products that are forbidden: they recognised only asbestos fibres, as a raw material but no more. So, many asbestos containing products used to enter in the country from non-EU countries. In 1994 a scandal was published by the new press: the so called “scandal of the train wagons”. As an economic aid, a certain quantity of train wagons was going to be given for free to the “Albanian Railways”, by an Austrian enterprise. The Austrian environmentalists warned their Albanian colleagues that the wagons were full of asbestos on their sides, and that the material called asbestos was a “very dangerous carcinogen material banned by the European Union”. The Albanian Government cancelled immediately the operation, and approved a DCM (Decision of the Council of the Ministers), the first anti-asbestos measure in its history: it declared forbidden the importation of asbestos containing products like wagons or

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trucks. The Decision was necessary but not suﬃcient. The experience of the period 1994-2012 showed this.

Copy of a public call for auction in 2011. is also 220 kg of friable asbestos.

Among the products there

While some industries shut down during 1991-1992, some were transformed into self-administered enterprises, and some were privatised, in a process that is still going on. In their storehouses they still found asbestos containing products that had been there since the 1980s. Not knowing anything about these products, the Managers of these enterprises put these products on sale. Last years we intercepted some public announcement for a public auction for some asbestos containing materials. In the case shown here, the Albanian Enterprise of mining of chromium “Albkrom”, through

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the Public Agency for Procurement, puts to public auction a quantity of 220 kg of asbestos mineral for the total price of 15 euros. Of course this is against some DCMs, but this shows also how serious the gap is between the environmental regulations and their implementation by the administration. As a meaningful indicator about how serious the problem of raising the awareness and capacity building of the administration and of the Albanian society generally is, here is the example of some school textbooks. In the “Chemistry” textbook of the 7th grade of the Albanian primary school, the “asbestos filter” and the “asbestos plaque” are listed as indispensable tools for most of the class chemical experiments described. The textbook was published in 2008, which brings us to the conclusion that all texts till that year do mention the asbestos as an indispensable tool for the schools, and that it has been used freely on our schools. This happens at the same time as was introduced in 5th grade of some schools an optional class the “Environmental education”, in which textbook asbestos is listed as a dangerous material.

!Copy of a Chemistry textbook, where it is shown how to use an asbestos filter for a class experiment.

Both these examples are indicators also of another problem, even more serious than the lack of information: it is the lack of cohesion and collaboration between diﬀerent institutions, and within the same institution when

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it is about any environmental issues. The asbestos issue is one of the most critical examples.

Map nËš 2.

Quantity of asbestos in place, in regions of Albania.

Today in Albania the actual quantity of registered Asbestos is around 90.000 tons. This map gives a territorial analysis showing areas where asbestos is still present in various forms, friable or non friable. This map shows asbestos hot spots, and potential areas where residents are currently exposed to high risk. These are the areas where we need to focus more preventive interventions through information and screening to avoid the risk of cancer

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morbidity, but also the interventions of recovery and remediation sites with Asbestos.

2. The public health care for the asbestos use a. Health care for asbestos workers during the communist period During the communist period, the “taking care” of the “working class”, and especially of those who worked in the so-called difficult sectors, was a question of principles and prestige for the regime it-self. The treatment of the asbestos industry workers was the same as that for all the workers of the above mentioned sectors, for example the mining or oil extraction industry. But the asbestos workers generally worked without any protection tools, or at best they used some very simple filter masks to protect them from the asbestos dust. Of course, these masks were completely inefficient. And, like every other worker of these kinds of jobs use to, even an asbestos industry worker had the right to have 1 liter of milk every day as a kind of antiintoxication drink. They had the right to have two weeks of holidays in the mountains or by the sea. No information about the risk of the asbestos used to be given to these workers, but it is very probable that not even the engineers of this plant use to have new updated information about what was being discovered in the world about the risk of asbestos. It is very probable that cases of mesothelioma and other asbestos related diseases occurred before 1990. It is sure that the medical staff used not to relate these pathologies to the asbestos exposure of the victims: this pathology has been treated like every other lung pathology, at the local hospitals or for the heavier cases at the “Sanatorium” Lung Diseases’ Hospital of Tirana. Nowadays it is almost impossible to verify how many cases of mesotheliomas have occurred in Albania during those years. It is also impossible to have the data from the medical center of the asbestos industries as the Eternit Factory was: the data of the medical status of all the workers disappeared during the early years of the transition. b. The medical system for the consequences from asbestos Within the framework of a project by the association ANEP1, financed by the Ministry of Environment we have attempted to estimate the asbestos disease burden in Albania The results of a questionnaire among the physicians of the PHC – primary health care in Tirana and in Vlora, showed that almost all the doctors didn’t know that asbestos is responsible for mesothelioma and other ARDs. They didn’t know that asbestos cement had asbestos in it, and they had no knowledge of the mechanism of action of the asbestos fibres on the human body. This first questionnaire was done in 2008, and repeated in 2012: the improvement of the know-how since the first one was very small.

§3. The policies regarding asbestos in Albania

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None of the physicians of the PHC – primary health care knew the basic things about the relation between mesothelioma and the asbestos exposure of the patients, the pulmonologists and surgeons of the specialised Hospitals did not know either: they do not know that nowadays the science is sure about this relationship cause-consequence. This brings us to the fact that mesothelioma patients are not questioned about their probable asbestos related past. The only question asked of lung cancer patients is: Do you (or have you ever) smoked? The result is that 98% of patients are smokers. This does not distinguish other lung cancer causes. Often, the mesothelioma cases are not diﬀerentiated from the other cases of lung cancer. Diagnosis is done only for lung diseases treated in the hospital “Sanatorium”. We have determined there are approximately 60 new cases of mesothelioma/year based on hospital diagnostic data. The professionals of the public health issues in Albania think that these cases are likely to be underreported and the number of the cases/year may be twice this estimate. Actually there is a need for implementation of a model for a Surveillance System: the “Asbestos Exposure History Questionnaire”. We have designed this kind of exposure history questionnaire for patients with symptoms relevant to a history of asbestos exposure, and we are attempting to implement the use of the questionnaire by primary care physicians and integrate it into a central method of reporting. During 2012 we have interviewed patients with mesothelioma. All of them have been in contact with asbestos containing products, especially with asbestos cement products, since the 80s: around 30 years after their first probable exposure, some of them unfortunately suﬀer from mesothelioma, without any hope. The only information about the real cause of their pathology they received from the questionnaire: at least they have known that their life has been taken by that silent killer called asbestos fibre.

3. The policies regarding asbestos in Albania While the Directive 1999/77/CE of the EU says that “Any form of utilisation of asbestos is forbidden, from January 1st, 2005 ”, this directive is not enforced in Albania as it is not yet a full member of the EU. Note though that in December 2013, Albania is expected to have the oﬃcial status of Candidate country. So even nowadays there is no specific law or regulation on the asbestos topic in Albania. Just in some regulation it is treated just from the point of view of a hazardous waste. With DCMs2 the importation of asbestos fibres and generally of the construction materials containing asbestos is forbidden. But it is clear that this is not enough. Albania needs assistance to creates its own anti-Asbestos Law.

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The Albanian experts and the association ANEP have made a successful lobbying with the Ministry of Environment, in order to push the European SELEA Project to work on a Draft Asbestos Law within the 2013. Also, through the collaboration with ANEP, a well known asbestos treatment company from Belgium has oﬀered its help for this purpose. Lately, the Department of Environmental and Occupational Health of the George Washington University (USA) have shown strong interest in the asbestos issue in Albania. The World Health Organisation (WHO) also have undertaken some capacity building activities with the public health professionals in Albania. Following the interest shown, the WHO Oﬃce for Europe has supported the printing of a monographic study on the asbestos issue in Albania (3), published in 2012. It is important that all the stakeholders actually agree that Albania has an urgent need for a large and well focused awareness campaign. Also, no law exists in Albania in order to classify the ARDs4 as professional diseases and to insure any compensation for the patients. Our opinion is that, since the exposure of the actual mesothelioma patients has occurred during the state centralized economy and in state owned enterprises, it is the State that must compensate these victims of the white dust. Albania needs assistance to create a National Register of Cancer and especially a National Register of the Mesotheliomas. Received 5 November 2013

Chapter 24

The Eternit Trial in Italy by Bruno PESCE Intervention of Bruno Pesce from AFEVA, the Association of families and victims of asbestos in Casale Monferrato, Cavagnolo, Rubiera and Naples, who are attending the conference with their own delegations1 . I would like to start by thanking the organisers from Andeva for having invited us to this important symposium. On behalf of Romana, our president, I would like to pay tribute to all the local associations linked to Andeva and express our solidarity. More than 2000 families have been aﬀected, some of them several times, by Eternit asbestos in Italy, and they are here, represented by delegations. We would like to express their feeling of empathy and solidarity with all the asbestos victims in France and throughout the world. I extend a cordial greeting to all the delegations present.

1. A historical verdict On 13th February 2012, in the court of Turin, baron Louis de Cartier de Marchienne and the Swiss magnate Stephan Schmidheiny, owners and senior executives of the multinational company Eternit were condemned to 16 years in prison. The criminal court of Turin held them responsible for having intentionally caused a malicious and permanent health and environmental disaster and of having intentionally failed to put in place the safety measures required by law in order to ensure the health and safety of their workers. 1 The brief commentaries, within the text, on the verdict of the Court of Appeal of Turin – 3rd June 2013 – and the editors note, at the end of the text, concerning the communication of the Supreme Court of Rome – 19th November 2014 – have obviously been added after the conference of 12th October 2012.

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This trial started on 10th December 2009. Four Eternit plants were involved: Casale Monferrato (the largest), Cavagnolo, Rubiera and Naples. This event, we, the victims of asbestos, have waited more than thirty years to witness it. The announcement of the verdict was an extraordinarily emotional moment for all those present : more than 1500 people spread over four large courtrooms, of which several hundreds had travelled from abroad with delegations from Andeva and other victims’ associations. The satisfaction we felt on hearing judge Casalbore pronounce the word « guilty » was mixed with the bitterness and pain on hearing him rattle down, one by one, the names of the thousands of victims. This trial is unique. It is of monumental proportions: - 200 000 pages of documents from the mammoth investigation by the public prosecutor Raﬀaele Guariniello; - nearly 3 000 victims (of which nearly two-thirds have died); - 6 500 civil parties (victims and families of deceased victims) ; - 75% of the deceased victims were from Casale Monferrato. Among them are 300 environmental casualties who died of mesothelioma2 and 1 100 workers killed by asbestosis, bronchopulmonary cancer or mesothelioma. The verdict of the Turin trial condemns a deadly example of industrial crime. It will go down in History. For the first time ever, justice called the attitude of senior executives of a multinational criminal. It underlines that the accused acted with a criminal intention within a planned strategy. They knew they were putting the lives of entire populations in deadly danger, but they wanted to defend at any price the continued use of asbestos, solely for business reasons. They preferred spending enormous financial resources to hide the truth, dupe the workers and the population, rather that use that money for limiting the extent of the disaster. By condemning them to sixteen years in jail, the court imposed a sentence that reflected the severity of the crime. The Turin court gave us justice. This verdict was not a foregone conclusion. It is both the result of thirty years of struggle and of the exemplary investigation carried out by the Turin Prosecutor’s oﬃce. 2

Mesothelioma is a rare disease (about 1400 cases per year in the whole of Italy). But in the little town of Casale Monferrato, which only has 36 000 inhabitants, 25 years after the closure of the plant, more than fifty cases a year are diagnosed, 80% of which result from an environmental contamination. The number of deaths per year caused by this illness carries on increasing. The “peak” has not been reached yet.

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2. The result of thirty years of struggle The origin of this criminal trial is the need for justice: we could not accept that so much suﬀering and so many deaths could go unpunished. Justice had to be done for our dead by getting the culprits declared guilty. Without justice, there is no dignity. 2.1.The beginning of the trial In 1986, when we initiated the first criminal proceedings against the local executives of Eternit Casale, we did not know that victory would be at the end of the road, but we had the duty to carry out this fight to the end, whatever the diﬃculties. The results of our first prosecution against the executives of the plant were disappointing : after eight years of investigation, the accused were found guilty but the appeal court found mitigating circumstances and reduced their sentences : none of them was condemned to a single day in jail ! The files of 800 ill workers and beneficiaries of deceased victims who had filed a civil case were adjudged to be time-barred and inadmissible in law. Despite these disappointing results, Afeva did not give up. It carried on taking tough initiatives. Thanks to the hard work carried out by all our volunteers , we were able to open hundreds of new cases with the public prosecutor. We were able to bring a mountain of testimonies and documents proving the guilt of the two accused. Standing opposite the multinational Eternit, we were able to bring an international dimension to this trial : during all these years, we received support from associations in France, Belgium, England, Switzerland, Brazil, United States. International experts, like Barry Castelmann from America, brought historical and scientific data. Lawyers from Italy, France, Belgium, Switzerland and the Netherlands worked on this case to finally get two senior executives from Eternit tried and condemned to lengthy prison terms. This unprecedented verdict is the conclusion of thirty years of merciless struggle against asbestos led in Casale Monferrato by the unions (in particular the local union CGIL) and Afeva, the association for the families of the victims. Refusing all compromise, we relentlessly pursued three objectives: « Justice – decontamination - research », that is to condemn those responsible in order to give justice to our dead, decontaminate our town by complete eradication of asbestos, better provision of medical treatment of the victims and research on mesothelioma. During the two years of the trial, the victims and the families showed an impressive capacity for mobilisation : at each of the eighty three hearings (eighteen preliminary hearings and sixty five hearings on the main matters),

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at least a hundred people piled up in court, after having done the hundred kilometres that separate Casale from Turin by bus. The number of people involved in this struggle never stopped growing, until the whole community was united, the unions (CGIL, CISL, UIL), institutions, schools, doctors and the whole population. Since 2000, the participation of the school pupils in collective action has grown. The young feel concerned. The day of the verdict, one of the four courtrooms was full to capacity with 300 youths from Casale. This participation of the population and the young was decisive. The day before the verdict, the accused Schmidheiny offered 18 million euros to the mayor in return for dropping all legal proceedings, current or future. The City Council accepted. We then saw an extraordinary mobilisation of families, inhabitants and the young demanding it reject this « pact with the devil » : « Justice first, then money ! ». This mass mobilisation – during which Afeva offered organisation and moral support – and the intervention of the Health minister Renato Balduzzi forced the mayor to back down. The municipal authorities thus avoided an irreversible split with the victims and the population, which would have posed a serious threat to the continuing struggle. 2.2. The exemplary investigation of the Public Prosecutor Guariniello This verdict was also the result of the exemplary investigation carried out by the Turin public prosecutor’s office. We must pay tribute to the tenacity and professionalism of the public prosecutor Rafaelle Guariniello and his colleagues. In order to investigate this titanic case, they had to use methods of investigation which were unusual in this type of case. The police raids enabled the discovery of a mass of documents confirming the guilt of the accused. They had the courage to escalate the responsibilities to the highest level, by indicting two owners and executives of the multinational of asbestoscement, one Swiss, the other Belgian. They were able to retain charges (« permanent and malicious environmental disaster” 3 , “intentional omission of safety measures”) which properly account for the seriousness of this disaster and its collective nature. They did not hesitate in requesting very heavy sentences, on a par with those applied to these crimes. 3 The notion of “malicious intent” played a key role in drawing up the charges. During a conference at a legal advice centre, prosecutor Guariniello clarified its definition: the main purpose of the two accused was not to kill. But they knew that their conduct would put the workers and the population at a very real risk of illness and death. The awareness of this risk did not lead them to give up this conduct or the advantages they derived from it. They persisted in assuming this risk.

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2.3.The appeal trial and “second" Eternit trial In the following months the appeal trial begun: the lawyers for the accused systematically contested, point after point, every phase and every aspect of a trial which they denounce as “unconstitutional”. The 6300 civil parties also appealed. On 3rd June 2013, the court of appeal of Turin confirmed and strengthened the condemnation. 1) A few days before, Belgian baron de Cartier, found guilty in first instance, died and therefore escaped from human justice. 2) The prison sentence for Stephan Schmidheiny grew from 16 to 18 years (prosecutor Guariniello had demanded the maximal sentence of 20 years). 3) Stephan Schmidheiny was found guilty of «human and environmental catastrophe by deception ». 4) The court of appeal not only recognized this for the victims of Casale Monferrato and Cavagnolo, but also for the victims of Naples and Bagnoli, which were excluded from the first judgement. The gravity of the sentence matches the planed criminal strategy of the Eternit corporation. During decades, the asbestos cartel, as was amply demonstrated by the enquiries of Turin prosecutors, has expanded, hiding the hazards and carcinogenicity of this lethal fibre, provoking disease and death for thousands of workers and environmental victims unaware of the danger. Representatives of victims from Italy, Spain, Belgium, France and Peru, present the day before in Casale and the next day with other international delegations, during the reading of the sentence, wished to underline three exemplary lessons from this historical verdict: 1) Human life and dignity must be preserved at the workplace and living place. No one has the right to give priority to profit over health and human life. 2) International corporations are very powerful but their impunity may be defeated when victims unite and fight with the support of public opinion and international solidarity. 3) Asbestos, which is still mined and traded in three quarters of the planet, must be immediately banned in all countries. Today we celebrate the victory of Justice and Hope. The court of appeal has acknowledged the existence of a specific damage, as a direct consequence of the catastrophe provoked by Eternit. The psychological suﬀering, not only of victims and their family but of all the workers and populations of the aggrieved towns, has thus been acknowledged. Any exposed person, even if not among the claimants, is entitled – in terms of the verdict – to ask for acknowledgment of this harm. The Turin public prosecutor’s oﬃce is trying to carry out the investigation of a second Eternit trial

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where the charge would be “voluntary manslaughter for fraudulent purposes” (this implies knowledge of the risk and acceptance of that risk). In the future, the Turin prosecutor’s office could initiate an investigation that could lead to a third Eternit trial, about the case of Italian emigrants who worked in plants in Switzerland, France, Belgium and Brazil. This would extend to other countries, for the first time, the possibility of an acknowledgement of the criminal nature of a business strategy. 2.4.Towards enforcement of the decisions of the Court Our association of families and victims is strongly involved in researching cases of Italian workers affected in another country and in the struggle for an effective implementation of the verdict of the 13th of February; we continue of course this fight to turn effective the appeal judgement of 3rd of June 2013. Turin’s criminal Court did not solely condemn the two accused to 16 years in prison. It also ordered the two accused and the company Eternit held civilly and jointly liable4 to provide funds for the payment of compensation. This order immediately enforceable pertains to 800 victims and beneficiaries of deceased victims for an amount totalling more than 24 million euros. To this must be added the sums of 15 million euros for INAIL (the Italian social security), 100 000 euros for our association of support for victims of asbestos, 25 million euros for the municipality of Casale Monferrato, 4 million euros for that of Cavagnolo, 20 million euros for the Piedmont region, 5 million euros for the healthcare institutions of the region, etc. The accused have not paid a penny. It was thus necessary to force them to do it to ensure a full application of the decisions of the court. However, in the current state of European law, the expenses which the victims and the families would incur in order to obtain an enforced execution of the decisions of the court outside Italian territory were so prohibitive that they largely exceeded their means. We turned to the Italian state, publicly asking it not to abandon the victims and to intervene directly in order to obtain that the verdict given « in the name of the Italian people », by a judicial institution, be applied effectively in accordance with the procedures laid down by European legislation. In the Italian parliament, more than 100 MPs have taken a stance by signing a motion supporting our request for a state intervention and by taking this request to the government. 4

Italian law allows a civil court to order the payment of an installment awaiting the final evaluation of the compensation by a civil court which will decide the final amount of compensation for damages suﬀered.

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2.5.There is still a lot to do Our “Committee against Asbestos” (Vertenza amianto) obtained important results, but there is still a lot to do and a long road ahead. The struggle carries on with these objectives in particular: • The fund for the victims of asbestos

Beyond this trial, there remains the question of the compensation of the victims of asbestos in Italy. Every year, 3000 people die of asbestos in Italy. A compensation fund for the victims of asbestos was created5 . But its budget is derisory and it only compensates the professional victims. We ask that it receives a significant funding from the State and that it compensates all the victims of asbestos, whether professional or environmental, like Fiva does in France6 . The people having received compensation must retain the intangible right to prosecute those responsible in court. • The complete eradication of asbestos Since 1998, a program of eradication of asbestos has been ongoing in the 48 municipalities of the area of Casale Monferrato, thanks to public funding worth tens of thousands of euros. Cooperation was established between the health authorities, Piedmont’s regional prevention agency, the municipalities of Casale and its neighbours, the province of Alexandria and the region of Piedmont. It enables important and complex operations of decontamination to be carried out. Today, all public buildings have been decontaminated. The old Eternit plant was dismantled in 1986, a century after its construction. More than 50% of the private sites have been decontaminated. There still remain about 500 000 square meters of asbestos-cement roofs in the town and the rest of the aﬀected territory. Public authorities finance 50% of the operating costs of removal, landfill and replacement of the roofs and 100% of the cost when dealing with friable asbestos. We must complete the cleaning up of the territory of Casale (48 municipalities – site of national interest). The government must guarantee the continuity of financial support to maintain the financial incentives, the service and the public structures for the collection and disposal of asbestos waste. If work on the sites that are still to be decontaminated is carried out, the territory of Casale could in a few years time become the Italian territory where disposal of asbestos was the most thorough. 5

Documentation on the «Italian Fund» Al via il fondo per le vittime dell’amianto: http://www.inail.it/internet/salastampa/SalastampaContent/PeriGiornalisti/news/p/ dettaglioNews/index.html?wlpinternet salastampa news archiviosalastampa 1 contentDataFile=P1333504675& windowLabel=internet salastampa news archivio salastampa 1&dDocName=P1333504675 6 The French compensation fund for the victims of asbestos (Fiva) is a public body created by the legislation of 23th December 2000. Afeva participated in the mobilisations of Andeva in France so that Fiva obtained the means to accomplish its missions.

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We also must extend this policy of eradication of asbestos to local, regional and national levels by putting into place measures inspired by the experience of Casale. • Research on mesothelioma

From the end of the 1970s, union activity was boosted by the meeting of a group of young workers highly motivated by health at work and doctors such as Daniela Degiovanni or Doris Vizia. With the INCA-CGIL, we initiated hundreds of procedures to obtain that the pathologies linked to asbestos be recognised and correctly compensated by INAIL. In Casale, the first case of asbestosis was recognised in 1943, but we had to wait until 1987 for INAIL to recognise the first case of mesothelioma without asbestosis, following a court ruling. Faced with the number and seriousness of the pathologies linked to asbestos, our plan of action quickly went beyond the framework of strict forensic litigation to encompass other domains, such as epidemiology, the medical care of the victims and research. The unions requested epidemiological surveys very early on. The first were carried out in 1987 by Professors Benedetto Terracini and Corrado Magnani from the University of Turin, working with the health authorities of Casale. They made it possible to identify 200 deaths due to asbestos among workers and to confirm the existence of contamination within families and in the environment. Faced with this epidemic of mesothelioma, the doctors of Casale acquired a deep knowledge of this extremely serious pathology. This led them to call into question some traditional medical practice, by considering that you had to take care of the patient and not just treat the illness. Afeva requests that increasing means be allocated to research on mesothelioma. We have been fighting for many years for public health institutions to move in this direction. Mr Balduzzi, the Health Minister has undertaken the assessment and coordination of the research activities on mesothelioma at national level and even at the European Community level, from which he has received a special mandate. With the unions we fight to obtain the identification of sites contaminated by asbestos fibres and the creation in these places of expert research centres (universities, etc.) which would work closely in order to develop new protocols for experimental treatments. We also demand the development of basic research (in our region there is a « biological data bank of mesothelioma ») as well as optimisation on a national level of existing tools for a diagnostic, treatments and the follow-up of victims.

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3. The international dimension of the victims’ struggle Asbestos is still used in three-quarters of the planet. To avoid populations being further decimated, it is necessary to ban this material worldwide and initiate in every country a national and regional policy aimed at identifying and eradicating the asbestos in place in order to decontaminate the environment, to better establish the employers’ liabilities and punish the guilty and to improve compensation for the harm suffered by the victims. It is necessary to harmonise from the top the various national legislations on the protection of the environment, health, compensation and the social security cover. The European community must play an active role in this domain. An international petition for the worldwide ban of exploitation and use of asbestos initiated by Afeva stated after the trial that «Any civil society has the duty to prevent future generations from suffering such tragedies». Taken up by many associations from various countries, the petition was addressed to the United Nations, the World Health Organisation, the International Labour Organisation and the World Trade Organisation7 . This struggle will remain on the agenda as long as some countries and populations will be exposed to the criminal risk of asbestos. The giant trial of Eternit contributed to the emergence of the truth on the massive slaughters caused by the crimes on an industrial scale of the multinationals. It highlighted the deadly effects of a model of economic development which privileges easy profit without caring for the extremely serious consequences on the health of the workers and the population. The investigation of the Turin public prosecutor’s office, led by the prosecutor Guariniello and his colleagues, is a major and unprecedented contribution to this citizens’ struggle on an international scale. It is unacceptable that multinationals which contaminate workers, population and environment escape their responsibilities. It is urgent we simplify the international procedures relating to the investigations and letters rogatory, to review the mechanisms of judicial procedures and compensations. To the « multinationals of profit », bringing deaths and enormous suffering, we oppose the « multinational of the victims » bringing justice and economic and social development which privileges respect for the life and health of human beings. We are certain that by pursuing the mobilisation of the International Movement of the victims of asbestos and by taking striking initiatives of struggle such as the one taking place during these two days in Paris, we will reach our objectives : the worldwide interdiction of asbestos, justice and protection of the health of the workers and of the population. 7

See on the site of AFEVA :

http://www.afeva.it

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24. The Eternit Trial in Italy – B. Pesce History of prohibition of asbestos in Italy : From “monetization” to ban (1960–1992) The trade union approach to health at work has evolved during the last decades. During the 1960s, the severity and insalubrity of conditions were invoked to obtain an increase in wages. This “monetization” of arduous and unhealthy working conditions was considered normal practice then. The dominant culture considered as “normal” that a worker could fall ill due to his work and die. After 1968, millions of workers started a fight, all over Italy, to improve their working conditions. In Casale, with the support of doctors, a few improvements in the working conditions at Eternit were wrenched but not enough to suppress the risk. In the 1980s and 1990s, a struggle started against the use of asbestos. Going from a union struggle for the improvement of working conditions to a public debate on the banning of asbestos has not been easy. But, in Casale, there was no confrontation between defenders of employment and defenders of the environment. In 1986, the plant in Casale closed its doors after 80 years of activity, leaving 350 unemployed workers in the lurch and breaking its promises of conversion. Eternit France came forward to propose to take over the plant and continue the use of asbestos. This proposition was met with opposition from the local union CGIL (later joined by the CISL and the UIL) and the ecologists. – One hundred and ten doctors from Casale publicly took position against the project. – The mayor of Casale Monferrato, Ricardo Coppo, struck the decisive blow to this attempt at « getting reconciled with asbestos » by promulgating a historical order banning the use of asbestos over the territory of the municipality. There remained to extend this ban to the whole of Italy. Brought to a « No to asbestos » symposium organised in 1989 in Casale by the CGIL and the INCA, this demand was taken up on a national level by the CGIL, then by the CISL and the UIL, and included in a unified platform. It took another three years of sit-in in front of the Parliament in Rome, demonstrations of unemployed workers from Eternit organised by the local union CGIL, petitions from AFEVA to wrench the adoption of legislation 257 in 1992 which – five years before France – banned asbestos in Italy. Received 5 May 2013, revised 10 september 2013 Translated from Italian and French version by Fleur Pettie

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Editors note. On 19th November 2014, as this book was going to press, the Supreme Court of Rome has announced in a brief communication the cancellation of the sentence of the Court of Appeal of Turin, considering that the statute of limitations had passed. The sentence of the Italian Supreme Court provoked a wave of protest in Italy and among asbestos victims in the world.

Countries reduced their asbestos use after realizing the burden of Asbestos Related Diseases (ARD). Although the reduction of asbestos use may correlate with country’s own acquisition of ARD data, the ‘lessons’ of other countries are not easily learned. Syed Aljunid, United Nations University 2011

Chapter 25

Asbestos in France and the world : conclusions by Marc HINDRY and Pierre PLUTA Many people in Europe and North America – the countries which used asbestos extensively in the past but no longer use it today – are surprised, and even astounded when they learn that the asbestos trade is still flourishing today, but that it migrated. Today the great asbestos trade route from Canada to the United States and Europe has been replaced by the trade route from Russia and Brazil to India, China and South East Asia in general. The quote highlighted comes from the statement made by a Malaysian epidemiologist at the United Nations University in 2011.

1. Asbestos in France: an overview 1.1.From uncontrolled use to ban From 1932 to 1996 France imported more than four million tons of asbestos: more than 50% came from Canada, 25% from the USSR, about 10% from South Africa and 6% from Italy1 . As to asbestos consumption it is worth adding that Eternit exploited the mine of Canari in Corsica for about twenty years, until 1965, and extracted about 300 000 tons of asbestos. Eternit left a true ecological disaster on the site, as a consequence of filling part of the bay with debris from asbestos rocks. Apart from Eternit, the main multinational companies which exploited asbestos in France were Saint-Gobain (Everite, Pont-à-Mousson, Isover, etc.) and Turner & Newall (Ferodo, Valeo, Ferlam, Flertex, etc.). The asbestosprocessing plants came together to form an “asbestos union committee” and 1

Source : Ministère du Commerce Extérieur (Ministry of Foreign Trade).

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an “asbestos-cement union committee” then in 1980 they created the “French Asbestos Association”. As early as the 60s, these industrialists called on the lobbying firm “Communications Économiques et Sociales” (Economical and social communications), which became the headquarters of the “Comité Permanent Amiante”, CPA (Permanent Asbestos Committee), formally established in 1982. This scientific and official looking group (it included representatives from ministries, doctors, union and industry representatives) dictated French policy in asbestos matters for 13 years with the slogan “controlled use”. France became the biggest asbestos consumer in the European Community. Under the influence of the CPA, representatives of the French government even opposed a German proposal for a European ban in 1991 (see article by Gerd Albracht in this book). From 1994, this “Eden of silence” started to break for the asbestos merchants when several events shook public opinion and the French authorities. The scandal of Jussieu Campus – a huge building in the heart of Paris, almost entirely flocked with asbestos, where cases of asbestos related diseases including several cancers were discovered – became known to the wider public; the association “Comité Anti Amiante Jussieu” (Jussieu’s anti asbestos committee) played a role in the creation of the ANDEVA. On 28 September 1995 a report on national television titled “Deadly asbestos” shook the authorities: in this report workers in an Eternit plant could be seen opening bags of asbestos with a knife and the myth of “safe use” was blown apart. Nevertheless several months elapsed before the formal creation of the ANDEVA, the filing of a complaint against person unknown for poisoning, accidental injuries, manslaughter and wilful failure to act, and the presentation of the conclusions from the INSERM report ordered by the health authorities, before Jacques Barrot, the Minister for Labour and Health, announced the ban on asbestos in France on 3 July 1996. The decree banning asbestos was published in the Official Journal on 24 December 1996 and the ban became effective from the 1 January 1997. The INSERM collective expert report “Effets sur la santé des principaux types d’exposition à l’amiante” (Effects on health of exposure to asbestos) presented an irrefutable body of medical and epidemiological evidence on asbestos. Yet it encountered two oppositions: a year later, Claude Allègre, the new minister for Education and Research, who had published an appalling article where he promoted the virtues of the magic mineral – an article which would later be translated in Portuguese and be used by industrialists in Brazil – envisaged to prevent the publication of the INSERM report. The other opposition came from Canada which attempted in vain to discredit the INSERM report to give weight to the procedure initiated by Canada with the World Trade Organisation (WTO) aiming to cancel the French decision (see

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article by Michel Parigot, in this book). Two asbestos producing countries, Brazil and Zimbabwe supported Canada while the United States defended France and public health. Common sense and public health prevailed and the ban on asbestos in France remained in place and rapidly extended to the European Community (the 1999 directive gave until 2005 to cease all asbestos use). Plants still using asbestos in France in 1995 (mainly Eternit, Everite and Pont-à-Mousson, Ferodo Valéo) quickly converted to the “no asbestos” policy in the course of 19962 . 1.2.Problems linked to asbestos already in place The ban on asbestos did not make the asbestos already in place disappear. Asbestos was of course present in the asbestos processing plants, naval shipyards, steel and chemical industries. However, following the ban on asbestos, most of the asbestos (more than 90% of the imported asbestos) was located in buildings in multiple forms: asbestos-cement (cladding, pipes, sheets, roofs, etc.), slabs, cartons, glue, flocking and insulation, etc. To our knowledge there are two lists of products attempting to identify all materials containing asbestos which have been sold in France, one prepared by the INRS (French Institute for Research and Security) for the prevention of accidents at work and occupational diseases and the other compiled by the ANDEVA. It is well known that if, on the one hand, the highest rate of asbestosrelated diseases is to be found among the workers from former asbestosprocessing plants, naval shipyards and from flocking and insulation, on the other hand, the greatest number of victims come from building workers – construction, improvement and maintenance. Insulation workers, builders, carpenters, painters, heating engineers, electricians, plumbers, etc. pay a heavy price for the mistakes committed in the past in asbestos matters. From the justice and public health point of view, French society is facing two issues linked but of a diﬀerent nature: 1) to prevent a future epidemic of cancers linked to exposure to asbestos already in the buildings; this problem concerns primarily the building trade but also the users of these buildings; 2) to give justice today to the victims of past use of asbestos, that is compensate these victims and look for the people responsible for this health disaster. 2 Usine nouvelle, 3 October 1996, Matériaux: coûteuse reconversion pour les producteurs de fibres-ciment. Reconversion éclair pour Eternit et prudente pour Everite (expensive conversion for fibro-cement producers. Very fast for Eternit and cautious for Everite). http ://www.usinenouvelle.com/article/materiauxcouteuse-reconversion-pourles-producteurs-de-fibres-cimentreconversion-eclair-pour-eternit-et-prudente-pour-everiteapres-l-interdiction-de-l-emploi-de-l-amiante-les-deux-anciens-product.N80227

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1.3.Law and risk prevention In France the first legislative measures of prevention specifically for asbestos date from the end of the 70s. The decree of August 17, 1977 relating to special hygiene measures applicable in buildings where the workforce is exposed to asbestos dust, imposed an exposure limit value within asbestos processing plants3 . A decree dated June 29, 1977 banned asbestos flocking in residential buildings. These measures were totally inadequate to prevent exposure and cancers linked to asbestos; they allowed the public authorities to remain inactive for nearly twenty years and the industrialists to import more than a million extra tons of asbestos between 1977 and 1995. However, from 1996 onwards, France acquired a coherent and rational legislation in matters of prevention of cancers risks due to asbestos. France drew lessons from its neighbours which had banned asbestos and provided themselves with substantial measures of prevention against the asbestos risk, in particular Germany and Switzerland. We shall present a short state of aﬀairs relating to this preventive legislation and the problems linked to its application. The legislation for prevention is based on two decrees, one concerning the protection of workers exposed to asbestos dust, the other concerning the protection of residents living in buildings containing asbestos. The measures include requirements concerning the systematic identification of materials containing asbestos, the information of users and businesses, rigorous procedures during maintenance operations or removal of these materials, the wearing of individual and group safety equipment. Naturally these measures present problems in their application, it is mainly controlled by the labour inspectors who have the power to halt a construction site. The main legislative texts have been included in the Labour and Public Health codes; the main decrees are the following: – Decree no. 96-97 of February 7, 1996 relating to the protection of the population against health risks linked to an exposure to asbestos in existing residential buildings imposes an identification and diagnostic of asbestos flocking and insulation in all buildings as well as an obligation for removal or confinement operations in situations judged to be hazardous. – Decree no. 96-98 of February 7, 1996 relating to the protection of workers against the risks linked to the breathing of asbestos dust, imposes a strict control on exposure to asbestos at work, an obligation to eliminate the risk as much as possible and, in all circumstances a maximum level of 0,1 fibre per cubic centimetre (100 fibres/litre) beyond which respiratory protection is compulsory. 3 The text states that : « The average concentration of asbestos fibres in the air breathed by an employee during a working day must not exceed 2 fibres per cubic centimetre ».

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– Decree no. 96-1133 of December 24, 1996 relating to the banning of asbestos, pursuant to the labour and consumer codes, puts a definitive end to the asbestos trade on French soil. – Decree no. 2001-840 of September 13, 2001 profoundly modifies decree no. 96-97 of February 7, 1996, by imposing an identification of all materials containing asbestos, strengthening the obligation for works and requiring the preparation of a “document technique amiante” (asbestos technical document) for each and every building where asbestos has been reported, this document must be communicated to any business having to work in the building as well as to the building users on request. – Decree no. 2012-639 of May 4, 2012 relating to the risks of exposure to asbestos, strengthens the obligations for safety and control regarding operations with exposure to asbestos dust and in particular it lowers the admissible level to ten fibres per litre (dividing the previous standard by ten). Finally research led by the INRS and the ANSES resulted in an improvement of techniques and knowledge; we can name in particular the work on the toxicity of short fibres4 . 1.4.Social measures and compensation In France the ministry of Labour, Health and Social Affairs coordinates a dual system dealing with on one side people with high exposure to asbestos and on the other people suffering from asbestos related diseases. It is a system giving a right to early retirement for the first and compensation for the second. 1.4.1. The asbestos early retirement In 1998, the law on social security funding put in place an “asbestos early retirement” plan, available to people aged 50 or over: the ACAATA (early retirement grant for asbestos workers). The law provides two routes of entry to the system for the workers 1) having worked in one of the establishments on the official list as defined by the decree; 2) having obtained recognition of an occupational disease due to exposure to asbestos dust (see below chart 30 or 30 bis). Initially the list of establishments only contained asbestos-processing plants but it was later extended to include flocking/insulation and asbestos 4 Report Short asbestos fibres by the Agence nationale de sécurité sanitaire de l’alimentation, de l’environnement et du travail (ANSES) on Asbestos short fibres. In French http://www.anses.fr/fr/content/fibres-courtes-d%E2%80%99amiante In English https://www.anses.fr/en/content/short-asbestos-fibres

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removal workers, as well as those from ship building and repairs. Whether some establishments are listed or not gives rise to many bitter disputes5 . Initially people suffering from pleural plaques were not included but this injustice was later corrected. For people aged under 50 who have obtained the right to an asbestos early retirement, the monthly payments by this fund amount to around 65% of the gross salary earned in their last 12 months of work. This system is not yet available to craftsmen or civil servants suffering from an asbestos related disease, due to the lack of an implementing decree. It is difficult not to notice that the category of employees providing the largest number of asbestos victims – the building workers – is not included in the first paragraph of the measure. According to a recent report by IGAS (General Inspectorate of Social Affairs), around 26 000 people are currently benefiting from the early retirement grant and since its creation in 1998, the system has dealt with about 80 000 people. The fund for early retirement is financed almost exclusively by the “accidents at work and occupational diseases” department of Social Security, that is the employers. 1.4.2. The routes for compensation Legislation on occupational diseases The system of recognition and compensation of occupational diseases in France is based on a list of diseases and activities described in charts. When the disease of a worker fits the criteria in the chart (medical criteria and criteria of exposure), the disease is deemed of professional origin. Asbestosis was included in 1945 and a specific chart for asbestos was created in 1950 (chart 30). This chart which initially only contained asbestosis, was amended several times. Cancer of the lung (only as a complication of asbestosis) and mesothelioma were included in 1976, pleural plaques and pleural thickening in 1985, as well as a more flexible recognition criteria for lung cancer “when the link with asbestos is medically asserted”. The most important alteration was in 1996 and improved the recognition criteria of lung cancer as an occupational disease, which is now possible in two ways : a) lung cancer associated with asbestosis or pleural alterations (30C); b) lung cancer with a minimum of ten years exposure to asbestos within a restrictive list of professional occupations (Chart 30bis)

5 French legislation is quite diﬀerent from the Italian legislation described in the article by Enzo Merler in this book.

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CHART 30 DISEASE NAME

A. – Asbestosis : pulmonary fibrosis diagnosed by specific X-ray evidence, with or without alteration of the pulmonary function test. Complications : acute respiratory failure, right heart failure.

TIME from exposure to care 35 years (subject to an exposure of 2 years)

B. – Benign pleural lesions with or without alteration of the pulmonary function test : – plaques with or without calcification, pericardial or pleural, unilateral or bilateral, when confirmed by a CT scan – pleurisy with eﬀusion – thickening of the visceral pleura, either diﬀuse or localised when associated with parenchymal bands or rounded atelectasis. These observed anomalies must be confirmed by a CT scan.

40 years

C. – Malignant bronchopulmonary degeneration complicating the parenchymal and pleural benign lesions mentioned above.

35 years (exposure of more than 5 years)

D. – Primary malignant mesothelioma of the pleura, peritoneum, pericardium.

40 years

E. – Other primary pleural tumours.

40 years (exposure of more than 5 years)

INDICATIVE LIST main occupations

Occupations involving the breathing of asbestos dust, including: mining, handling and treatment of asbestos minerals and rocks. Handling and use of raw asbestos in the following manufacturing operations : - asbestos-cement; plastic asbestos-cement; textile asbestos; plastic asbestos; asbestos-coated board, paper and felt; asbestos sheets and seals; friction linings; products moulded or in asbestos-based materials and insulators. Occupations involving carding, spinning, weaving asbestos and manufacturing products containing asbestos. Application, destruction and removal of asbestos-based products: sprayed asbestos; insulation by products containing asbestos, removal of asbestos. Operations of installation and removal of insulation containing asbestos. Operations of equipment and maintenance of materials/buildings clad or containing asbestos-based materials. Oven pipes. Operations requiring a routine wearing of garments containing asbestos.

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It is interesting to compare the criteria, rather similar, chosen in Japan (see article by Sugio Furuya & Yeyong Choi in this book). The current criteria for recognition of lung cancer as an occupational disease – in the absence of asbestosis or pleural anomalies – is essentially the same as recommended in the INSERM report, chapter 10, which is the importance of exposure to asbestos dust: a minimum exposure of ten years and a restrictive list of occupations can result in such an exposure.

DISEASE NAME Primary bronchopulmonary cancer

CHART 30 bis TIME from RESTRICTIVE LIST of main exposure to occupations care 40 years (sub- Occupations directly associated ject to at least with the production of materials 10 years of ex- containing asbestos. posure) Occupations involving the use of raw asbestos. Insulation work using materials containing asbestos. Occupations involving asbestos removal. Occupations involving installation and removal of asbestos-based insulation materials. Jobs in ship building and repairs. Machining operations involving cutting and sanding of materials containing asbestos. Manufacture of friction materials containing asbestos. Maintenance jobs or maintenance of equipments containing asbestosbased materials.

According to the statistics from the National Health Insurance Fund for salaried workers (CNAMTS), asbestos related diseases (Chart 30 and 30 bis) represent 9% of the total number of occupational diseases each year but this ratio goes up to more than 70% if you take into account the deaths with an occupational origin; in the same way occupational cancers recognized under the heading of exposure to asbestos dust represent more than 80% of the total number of occupational cancers.

§1. Asbestos in France: an overview Year

Mesothelioma of the pleura Mesothelioma of the peritoneum Mesothelioma of the pericardium Other primary pleural tumours Chart 30 : cancer of the lung Chart 30 bis : cancer of the lung Total number of cancers recognised as linked to asbestos

333

2008 326

2009 358

2010 365

2011 382

2012 410

164

185

119

114

112

914

981

964

1008

1031

1433

1567

1473

1535

1579

Number of asbestos related cancers recognised as occupational diseases in France, 2008–2012 (Source : CNAMTS).

Since its creation the IARC6 has confirmed the carcinogenic and extremely dangerous nature of all forms of asbestos; as early as 1973, the first monograph about asbestos dating from 1977. The latest evaluation by the IARC, far from calling into question the carcinogenic nature of chrysotile, in fact asserts that “the epidemiological evidence has increasingly shown an association of all forms of asbestos (chrysotile, crocidolite, amosite, tremolite, actinolite and anthophyllite) with an increased risk of lung cancer and mesothelioma” and adds that all forms of asbestos also cause other cancers: – Cancer of the larynx and ovarian cancer (suﬃcient evidence); – Cancer of the colon, rectum, pharynx and stomach (limited evidence) In 1983, the European directive on asbestos 83/477/CEE relating to the protection of workers against the risks due to exposure to asbestos at work quoted gastrointestinal cancer among the asbestos related diseases. However in France only a very small number of these extrathoracic cancers are recognised as occupational, whether through the CRRMP (Occupational Disease Recognition Regional Committee) or through the judicial system. Compensation through the civil courts The recognition of an occupational disease entitles to the attribution of a pension which is calculated according to the reference wage of the employee 6

IARC : International Agency for Research on Cancer.

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and the partial permanent disability rate determined by medical expertise7 . This rate is on average 5% for pleural plaques, between 30% and 70% for asbestosis and between 67% and 100% for cancer. The compensation received according to the legislation on occupational diseases is very patchy and does not cover all the damages suﬀered; furthermore, a fairly large number of victims cannot claim it: victims of domestic or environmental exposure, self-employed workers, craftsmen, etc. These victims are estimated to represent roughly 20%. The victims of asbestos resort to several types of civil proceedings. First of all the legislation for occupational diseases provides a procedure which remained exceptional until taken up by the victims of asbestos: the possibility of suing their employer for “inexcusable negligence” 8 . It is then necessary to prove that the employer violated the rules of safety and had knowledge of the dangers. This “inexcusable negligence” procedure has been widely used, with success, for victims who worked in asbestos-processing plants (Eternit, Everite, Ferodo-Valéo, etc.), naval shipyards or big metallurgy and chemical companies. The Court of Cassation (the supreme court in France in civil, commercial, social and criminal matters) has, in a judgement of 28 February 2002, also explained that: “under the employment contract tying employer to employee, the employer has obligations of adequate safety for his/her employee, in particular regarding occupational diseases contracted by the employee due to the products manufactured or used by the company; failure to meet this obligation will be considered an inexcusable negligence, [. . . ] where the employer was or should have been aware of the hazards to which the employee was exposed, and where the employer failed to take the adequate measures to protect his/her employee.” However the procedure of inexcusable negligence can only be applied for 15 to 20% of victims. It is not only the environmental or domestic victims, self-employed, civil servants, farmers who cannot use this procedure but almost all building trade workers – working mostly for small businesses, or even for sub-contracting or temporary work agencies – who could hardly 7 The calculation rules are complex and oddly not linear : for workers under the «social security general scheme» the amount of pension is equal to half the permanent partial disability rate if this rate is below 50%, and equal to 25% plus one and a half time the fraction of permanent partial disability rate over 50%, when it is above 50%. For example, a permanent partial disability rate of 10% gives a pension rate of 5%, a disability rate of 70% gives a pension rate of 55% and a disability rate of 100% gives a pension rate of 100%. 8 This is a civil procedure, pleaded in Social Security courts, the stake being an additional compensation for the victim or their family.

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plead the inexcusable negligence of their employer. So the victims have turned to other jurisdictions: – The Compensation Board for the Victims of Crime (CIVI), by citing the negligence of the industrialists, employers, health authorities ; several hundreds of victims were able to obtain compensation this way. – The administrative tribunal, by citing the State’s shortcomings in matters of public health ; four asbestos victims obtained substantial compensation, supported by the judgement of the Conseil d’État – the supreme court in matters of administrative law – of 3 March 2004. The grounds of the judgement indicate that in the case of asbestos the State has failed on two counts : “ a) the absence of suﬃcient follow-up by the labour inspectorate of the hazards of asbestos dust, which resulted in ignorance of the scale of contamination and the lack of legislative developments; b) the failure by the State to apply the principles of prevention and caution.” The multiplication of compensation claims led to the creation in 2000 of the FIVA (Fund for compensation of asbestos victims). The functioning of the FIVA is fully described in the article by Marie-José Voisin (in this book); we will confine ourselves to highlighting certain points which, in our opinion, make the FIVA a model for a system of compensation for victims: – The FIVA compensates all asbestos victims and their families, whatever the origin of their contamination by asbestos ; – The law provides a rapid compensation, which is particularly important for the victims suﬀering from cancer ; – The victim is not forced to resort to the FIVA and has a choice of procedures; – The law on the FIVA provides for the possibility of recourse actions to make the people responsible pay9 . 1.4.3. Procedures for criminal proceedings Compensation for the victims of asbestos and their families is very important but should not make us forget the need to look for the people responsible for the asbestos tragedy, which was clearly largely avoidable. The search for liability is important in two respects: for simple justice and for drawing lessons from this tragedy. One of the founding acts of the ANDEVA was to file a complaint against person unknown, filed in June 1996, for poisoning, manslaughter, accidental injuries and wilful failure to act. The complaint was aiming at all the responsibilities which had resulted in disease and death by asbestos in France and in particular: 9

A particularly symbolic example is a recourse action won by the FIVA against Eternit, relating to the case of the deceased wife of an Eternit worker who had contracted mesothelioma from washing the overalls of her husband.

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– The industrialists of asbestos who knowingly spread asbestos for gain and also organised a campaign of misinformation and infiltration of public authorities; – The public authorities responsible for prevention and health monitoring and which failed in their mission; – The experts and doctors who contributed to the false propaganda aiming to hide the devastating effects created by asbestos; – The employers who exposed their employees and often the neighbourhood and who were aware of the dangers. The filing of this complaint had a considerable impact in France and in all likelihood hastened the important decisions in matters of prevention, taking into account the asbestos risk and compensation for the victims. However the judicial process was very slow and probably slowed by numerous obstacles. The trial stalled for eight years, the magistrates remaining basically indifferent or inactive. This state of affairs changed thanks to the energy, dignity and determination of a group of victims’ families who called themselves the “asbestos widows of Dunkirk ”. The call for justice, the search for the people responsible and the holding of a “criminal trial of asbestos” was the watchword for the marches of the asbestos widows. This collective primarily driven within the Andeva by women whose husband had died of an asbestos related cancer, organised the first “widows march” on 25 November 2004. These periodical demonstrations were regular occurrences over the following years, halting when the public authorities announced positive decisions and starting up again when inertia regained the upper hand. The marches of Dunkirk alternated with the annual national demonstrations of the Andeva gathering several thousand demonstrators. In September 2003, a Public Health Centre was created in the image of the Financial centres, in the crown court of Paris. However a lack of funds meant that this centre was powerless. The energy and belief of the widows of Dunkirk greatly contributed to persuading the authorities to finally release funds and name a judge who would at last get interested in the case! Sixteen years after the filing of the first complaint, the position was as follows: the whole procedure resulted in the indictment of Eternit directors and members of the CPA, among them the CEO of Economical and Social Communications, industrialists from Saint-Gobain and the French Asbestos Association, two doctors and the former director of the INRS (French Institute for Research and Security). One symbolic case was that of Mr Latty, an industrial who for several decades was the director of an asbestos processing plant, had been president of the asbestos union committee and served on the CPA: indicted in the asbestos case, he will not be brought to justice because he died of mesothelioma.

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2. Asbestos in the world: an overview During the last two decades of the 20th century, the asbestos trade shifted from North America and Europe to Latin America, Asia and the countries from the former USSR. The first step towards this shift was taken by Canadian industrialists and their government who had been trying for a long time and by any means to protect the prospects of their mining industry. The end of the 20th century was marked by the decision of the United States to stop using asbestos and the gradual decision of European countries to ban asbestos in all its forms. The first decade of the 21st century was marked by several noteworthy changes. Australia, once an asbestos producer, and Japan who used to be one of the big consumers of asbestos, both banned asbestos on their soil (see articles by Lisa Singh and Sugio Furuya & Yeyong Choi, in this book). For diﬀerent reasons, the two big African asbestos producers stopped extracting asbestos: South Africa realising the scale of the tragedy of the asbestos related diseases, in its turn banned asbestos and of course closed its mines (see article by Tina da Cruz, in this book); the mines of Zimbabwe, a country in the grip of corruption and economic collapse, are also closed. Finally, the major event is without a doubt the stopping of asbestos production in Canada. Today the great axis of asbestos trade Canada-United States has been replaced by the axis Russia-India and the trade once flourishing in Europe and North America is now causing havoc in India, China and the countries of South-East Asia, Brazil and the countries of the former USSR. 2.1.Extraction and sale of asbestos Canada having stopped producing asbestos, the world ’s asbestos production is now concentrated in four countries, of which three are big exporters10 : 1) Russia is extracting one million ton of asbestos a year, which is slightly more than half of the annual world production. Russia exports more than three-quarters of its production, part of it towards Asian countries: China, India, Indonesia, Thailand, Vietnam and the rest towards countries which were formerly part of the USSR: Ukraine, Belarus, Uzbekistan, etc. Russia has decreased its asbestos consumption, however it remains substantial. The two big companies exploiting asbestos are Uralasbest (Uralasbest, in the town of Asbest, asbest) and Orenbourg Minerals (Orenburgskie mineraly in the town of Yasny, ⌫sny⇢); they are grouped together with the Kazakhstan company, Kostanai Minerals (in Russian Kostana⇢skie mineraly in the town of Zhitikara, ⌘itikara) in the Russian Chrysotile Association. In May 2013, Russia 10 The fifth producer, India, extracts less than 1% of the world’s asbestos, see articles by Laurie Kazan-Allen and Mohit Gupta (in this book).

338

25. Asbestos in France and the world – M. Hindry, P. Pluta served for the first time as a Party at the conference of the parties to the Rotterdam Convention and blocked the inclusion of chrysotile asbestos on the list of hazardous products specified in the annex of the said United Nations convention. It is obviously more than regrettable that the Russian authorities preferred to defend the interests of the Russian asbestos merchants to the detriment of the health of the Russian people and the people of the importing countries (countries of Asia and countries neighbouring Russia). It is very regrettable that the false arguments, developed by the Canadian industrialists, with the complicity and the subventions of the governments of Canada and Quebec, is now being recycled by the Russian Chrysotile Association, at the very time when Canada stopped producing asbestos and finally gave up the sabotage of the Rotterdam Convention.

2) China produces a lot of asbestos, about 400 000 tons a year, which it consumes almost entirely, and imports yet more, in a construction frenzy. The biggest consumer of asbestos in the world is alas preparing a large-scale epidemic. There are more than 160 asbestos mines and asbestos plants in China; the biggest mines (producing more than 30 000 tons a year) are Mangnai, Bazhou and Ruoqiang; the average-sized ones (between 10 000 and 20 000 tons a year) are Shimian, Xinkang, Qilian, Aksay and Chaoyang. Among the statistics of the Association of Chinese Mines11 can be read “According to the research undertaken by the Ministry of Public Health in China, at the end of 1996, more than half a million Chinese asbestos workers are suﬀering from asbestosis and more than a hundred thousand of them have died because they breathed that dust for a long period of time.” China exports relatively little asbestos however a large number of products made in China contain asbestos and China has no reliable labelling policy. Thus in 2012 Australia sent back thousands of cars where the engine seals contained asbestos; more recently still in Australia, asbestos was discovered in railway carriages imported from China. Curiously China has guaranteed that the constructions for the Olympic Games of 2008 in Beijing were asbestos-free but it does not monitor the exports of common products in the same way. 3) Brazil is the third biggest asbestos producer in the world, with an annual output of about 300 000 tons; the exploitation of asbestos in Brazil was started by the Saint-Gobain group which has long operated in collaboration with Eternit. However the only mine in operation today, the mine of Cana Brava in the state of Goias, is exploited by SAMA whose main 11

http://www.chinamining.org/Facts/2006-10-17/1161064322d1620.html

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shareholder is Eternit, because Saint-Gobain no longer uses asbestos in Brazil (see articles by Fernanda Giannasi and Hermano Castro, in this book). For a long time Brazil consumed all of its asbestos production but today it has become one of the big exporters. Brazil sells its asbestos mainly to Colombia, Mexico and countries in South-East Asia, including India. 4) In 2011, according to the statistics from USGS, Kazakhstan extracted about 220 000 tons of asbestos of which it exported 70 000 tons. This enables us to calculate an apparent consumption of 150 000 tons for 16 million inhabitants, in other words slightly less than 10 kilos per person/year – a dismal world record. The company exploiting asbestos, Kostanai Minerals (in Russian Kostana⇢skie mineraly in the town of Zhitikara, ⌘itikara) is a member of the Russian Chrysotile Association. Alma-Ata (a town in Kazakhstan, formerly in the USSR, Almaty, Almaty) hosted the international conference organised by the WHO on primary healthcare, in September 1978. The end of this conference saw the adoption of the “Alma-Ata declaration” which asserted in particular: “ The existing gross inequality in the health status of the people, particularly between developed and developing countries as well as within countries is politically, socially and economically unacceptable and is therefore of common concern to all countries.” This declaration unfortunately remains unfulfilled in the region where it was formulated, whether in Kazakhstan or in Russia, and the asbestos mines and the uncontrolled use of a carcinogenic material are only part of multiple failures. The statements of these countries’ mining industry about the security of the miners are very suspect: in Brazil, Kazakhstan and Russia drilling and blasting are regular occurrences; controlling asbestos dust in these conditions is more a question of prayer than reality; the working conditions of many Chinese mines hark back to the Middle Ages. It should be noted that these four countries, contrary to the historical big producer – Canada, which exported its asbestos but did not use it – are big asbestos consumers. They have in common an ignorance of the hazards of asbestos among the population, a lack of cancer registers, a lack of hygiene and safety procedures guaranteed by government authorities. The governments also seem to have adopted the cause of the asbestos industry, thereby repeating the criminal mistakes of the Canadian government. Brazil is probably the country which could be the next quickest to stop asbestos because first there is a strong association movement (labour inspectors, doctors and victims) in this direction and the asbestos industry is reduced to only one company (Eternit Brazil), secondly asbestos is already banned in six large

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states of Brazil and finally because its government is showing a desire to develop prevention and public health. 2.2.Asbestos use, past and present Asbestos use is now concentrated in three areas of the world: Latin America (Brazil, Colombia and Mexico), South-East Asia (China, India, Indonesia, Sri Lanka, Thailand and Vietnam) and the countries from the former USSR (Belarus, Kazakhstan, Uzbekistan, Russia and Ukraine). In 2011 the 14 countries mentioned used more than 97% of the asbestos sold in the world (see article by Laurie Kazan-Allen, in this book). However no country is spared by the scourge of asbestos diseases, even with moderate use because of past use and the vast amounts of asbestos found mainly in construction materials, but also in ships and industrial equipment. 2.2.1. Africa. In Africa, the halting of production and the ban of asbestos in South Africa, combined with economic collapse and the closure of the mines in Zimbabwe has meant that Africa no longer produces asbestos. If we add that two of the big countries – Algeria and Egypt – have in their turn banned asbestos, you could believe that the African continent was safe. It is unfortunately not quite the case. Admittedly all the African countries supported and requested the registration of chrysotile asbestos during the Rotterdam convention – with the notable exception of Zimbabwe – but few countries have totally stopped asbestos (other than South Africa, Algeria and Egypt already mentioned, only Gabon, Mozambique and the Seychelles) and a fair number of countries remain moderate consumers (Angola, Ghana and Nigeria). The exploitation of asbestos has mainly been the work of two companies Turner & Newall and Cape in South Africa and Zimbabwe, formerly Rhodesia. The names of Turnall Holdings reappear in Zimbabwe and TN Have-lock in Swaziland. Processing plants were created by Eternit France in Algeria, Senegal and, in the form of company holdings, in Morocco and Tunisia. The situation in Zimbabwe is still a cause for concern. Asbestos production only stopped because the Shabanie mines were nationalised and their management, marred by corruption and incompetence, did not succeed in changing strategy following the asbestos ban in the neighbouring country. The State enterprise Zimbabwe Mining Development Corporation (ZMDC) would like to resume operations to extract asbestos12 ; it is in fact in anticipation of this happening that the government of Zimbabwe has set itself apart from the rest of the continent to oppose public health at the Rotterdam Convention. The only eﬀective action for the moment has been the 12

New Zimbabwe, 9 November 2013, ZMDC to resume mining at Shabanie mine : http://www.newzimbabwe.com/news-12983-ZMDC+resumes+mining+at+Shabanie +mine/news.aspx

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brutal eviction of the former miners from their lodgings13 . The way to prosperity is obviously not the reopening of the asbestos mines – which would also bring back a host of diseases – but with the development of other economic activities14 . The contrast between the two countries is as striking as the treatment of their workers: South Africa has put a system in place to compensate former miners who are ill (see article by Tina da Cruz, in this book) whereas the Zimbabwean authorities still leave the former miners to die penniless. 2.2.2. Oceania. Australia has banned asbestos and New Zealand has banned the importation of loose asbestos, which means that in theory the import of products containing asbestos is still legal but in practice it is virtually non existent. However machines and products coming from China regularly create problems. We mentioned the Chinese cars imported in Australia, illegally since the sale of products containing asbestos is illegal there. It is interesting to compare the problems occurring with the carriages and locomotives imported from China which contain asbestos: the Australian and New Zealand unions of railway workers have opposed the use of these machines and demanded that they be sent back or decontaminated; however the import into New Zealand cannot be declared illegal in the current state of the legislation. Australia was an asbestos producer and a substantial consumer; today the mesothelioma epidemic has made the Australians aware of the asbestos problem and the Australian government has already taken a stance for a worldwide ban of asbestos (see article by Lisa Singh, in this book). Australian doctors are also at the cutting edge of research development on therapies for mesothelioma (see article by Arnaud Scherpereel, in this book). 2.2.3. Latin America. Asbestos is banned in the southern cone (Argentina, Chile and Uruguay) as well as in Honduras. However, Brazil in particular but also Colombia and Mexico are substantial consumers (see articles by Fernanda Giannasi and Hermano Castro, in this book, and the presentation by Guadalupe Aguilar during the conference15 ). In Colombia the asbestos industry is relatively new but developed following the opening of a mine by a former asbestos giant, the Johns Manville corporation; Eternit asbestos-cement plants are flourishing. A subject of 13 Voice of America - Zimbabwe, 9 October 2013, Liquidated Shabanie - Mashava Mines Evicts Former Workers : http://www.voazimbabwe.com/content/zimbabwe-shabaniemashava-mines-workers-eviction/1766272.html 14 Zimbabwe independent, 7 June 2013, Zvishavane : A tale of two diﬀerent worlds www.theindependent.co.zw/2013/06/07/zvishavane-a-tale-of-two-diﬀerent-worlds/ 15 Paris, 12 October 2012, « La epidemia de mesotelioma en Mexico » G. Aguilar de Madrid.

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greater concern is the “J.Manville” mine: it has been closed since 1998, but investors are considering reopening it16 . In Mexico, the asbestos industry has been present since the 30s, but mainly developed in the 70s, driven by American and Canadian industrialists. The use of asbestos has alas created a mesothelioma epidemic which is already documented. Bolivia, Cuba and Ecuador remain moderate consumers and did not adhere to the movement initiated in 2010 by the health ministers of the following countries: Argentina, Bolivia, Brazil, Chile, Ecuador, Paraguay, Peru, Uruguay and Venezuela, which acknowledged the dangers of asbestos, the financial and human costs linked to asbestos use and made a firm commitment to ban asbestos17 . Brazil is at the heart of these contradictions, representing the economic power of the continent, being a big asbestos producer but having in its midst a strong movement towards the rational development and improvement of people’s health. Thus asbestos is now banned in six large states of Brazil and the grip of justice is getting tighter around Eternit, the only company exploiting asbestos today. The constitutionality of “controlled use” is even being debated in Brazil’s Supreme Court, which, if it ignores the false declarations presented by the “experts” from the Brazilian Institute of chrysotile, should declare the use of asbestos as contrary to the principles of respect for the health of the worker enshrined in the Brazilian constitution (see articles by Fernanda Giannasi, Hermano Castro, in this book). 2.2.4. North America. Historically the direction of the asbestos trade has gone from Canada to the United States. Import from Canada to the United States at its peak in 1973 represented 693 674 tons. Canada had virtually stopped using asbestos for 30 years but it remained until very recently a major producer, exporter and promoter of the propaganda in favour of the asbestos trade; it is only in October 2012, with the announcement by the new Quebec prime minister Pauline Marois, that the 58 million grant for restarting the Jeﬀrey mine was cancelled and mining activity came to an end in Canada (see article by Kathleen Ruﬀ, in this book). The campaign of misinformation led by the mining industry, since the beginning of the 20th century, was strengthened at the beginning of the 80s by the support of the governments of Quebec and Canada (see contributions 16 El Colombiano, 20 August 2012, Milagro en Campamento : revivió de la ruina una mina de asbesto : http ://www.elcolombiano.com/BancoConocimiento/M/milagro-encampamento-revivio-de-la-ruina-una-mina-de-asbesto/milagro-en-campamento-reviviode-la-ruina-una-mina-de-asbesto.asp 17 Declaration of the Health ministers, 9 June 2010, Declaración sobre el asbestos en Reunión de Ministros de Salud del MERCOSUR y Estados Asociados, available at : http://www.andeva.fr/IMG/pdf/Declaration-Amsud9juin2010.pdf

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of Patrick Martin – Canadian MP – and Kathleen Ruﬀ, in this book). The asbestos industrialists won a great victory in 1991, by getting the New Orleans Appeal Court to cancel the decision of the Environmental Protection Agency (EPA) to ban asbestos in the United States; the tactics of the Canadian authorities at that time have been described in detail in the article by Laurie Kazan-Allen (in this book). However public health won a judicial victory ten years later, when the World Trade Organisation (WTO) dismissed Canada’s complaint against the asbestos ban in France (see article by Michel Parigot, in this book). Most of the asbestos uses remain legal today in the United States (see article by Linda Reinstein, in this book). However the United States today use very little asbestos: most of the industrialists have given up because of the large number of civil damages lawsuits. However these thousands of civil damages lawsuits in the United States have had a deeply worrying secondary eﬀect: the financing of a dubious scientific literature by the industrialists looking to minimise the amount of compensation paid to victims. For the industrialists it is a question of convincing the judges, not of the harmlessness of asbestos, but of the low impact on health of the financial backer’s asbestos products. When you come to realise that the evaluation of the carcinogenic character (probable or confirmed) of other products is made partly through an averaging of the published studies, you may start to be very concerned about the multiplication of these “pseudo-scientific” publications. Canadian authorities have long supported and financed this pseudo science and they have even abused their diplomatic position by attempting to influence bodies such as the International Labour Organisation (ILO) and the World Health Organisation (WHO). These same “expert” authors of misleading publications on asbestos register with tobacco companies and defend multiple carcinogens; some now also work for the International Association of chrysotile, nowadays funded by Brazilian and Russian asbestos industrialists. The reality of the diseases caused in Canada by chrysotile asbestos is described in the article by Fernand Turcotte (in this book). Compared to the rest of Canada, the Quebec province shows a rate of mesothelioma per inhabitant 9.5 times higher among men and 2 times higher among women; in comparison with the rest of the world, this rate in Quebec is only surpassed by a few counties in the United Kingdom, a few states in Australia and by a few regions of the Netherlands18 . This data sums up by itself the misleading appearance of the propaganda by Canadian industrialists and successive governments regarding the harmlessness of chrysotile “when used in a safe way”. 18

INSPQ, Épidémiologie des maladies reliées à l’exposition à l’amiante au Québec, 2003 (epidemiology of diseases linked to asbestos exposure in Quebec) : http://inspq.qc.ca/pdf/publications/222-EpidemiologieExpositionAmiante.pdf

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2.2.5. “Western” Europe. (European community and neighbouring countries) The European community, which now has 28 member countries, banned asbestos effectively from January 1st, 2005, along with Iceland, Norway, Switzerland and Turkey. In fact many of these countries had already banned chrysotile asbestos long before: for example the Scandinavian countries from the beginning of the 80s, Germany, Austria, Italy and the Netherlands from the beginning of the 90s. Apart from a few exemptions, relating to the manufacture of diaphragm for chlorine electrolysis, Western Europe no longer uses asbestos. The three countries which have applied these exemptions are Germany, Sweden and Poland. In Germany two American companies Dow chemicals and Solvay worked to circumvent the prohibition of asbestos. You can measure the efficiency of the lobbying by industrialists by the time wasted between the European directives of 1983, 1991, . . . and finally that of 1999, which prohibited asbestos. Italy, Greece, Cyprus, Finland, France, Turkey, Bulgaria and Yugoslavia have extracted asbestos in the past. Italy was the biggest asbestos producer in this part of the globe; it was also after the Scandinavian countries, one of the first countries to assess the scale of the asbestos tragedy and to take banning measures in 1992. The involvement of the Italian judiciary authority, together with the associations of victims enabled the holding of a trial called the “Eternit trial” which gave an example to the whole world (see article by Bruno Pesce, in this book). Some technical aspects, illustrating the difficulties of a mesothelioma diagnostic, are described in the article by Pier-Giacomo Betta, who worked as an expert pathologist for the Italian judiciary (in this book). Belgium was the cradle of the Eternit plants (see article by Éric Jonkheere, in this book); the Netherlands, notably the towns with naval shipyards such as Rotterdam, suffer one of the highest rates of mesothelioma (see article by Tinka de Bruin, in this book); Germany has been the biggest asbestos consumer: West Germany imported almost 400 000 tons of asbestos at the end of the 70s; first the unions then the health authorities took the measure of the danger during the 80s and Germany was then at the forefront of preventive action, notably in relation to asbestos already in place (see article by Gerd Albracht, in this book). Spain is slowly taking the measure of the asbestos problem: the company Uralita – which was the main Spanish asbestos user – is now regularly forced to pay out compensations to its employees victims of asbestos. Poland is the only European country which has equipped itself with an asbestos elimination plan19 . 19 The Polish plan envisages the eradication of asbestos by 2032. However it is encountering many difficulties, see for example : Environmental Asbestos Exposure in Poland, Neonila Szeszenia-Dabrowska : http://www.imp.lodz.pl/upload/english/english/part3.pdf

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The countries from the former Yugoslavia and Albania have not yet banned asbestos but they no longer use it. Albania is a candidate for joining the European Union and presents a special case: having been a “communist” country without being under the control of the USSR, this country no longer imports asbestos directly even if its use is not forbidden at the moment; the situation in relation to asbestos in situ and the asbestos-containing products is described in the article by Romeo Hanxari (in this book). The influence of the European community’s decision to ban asbestos has certainly been significant. We note that Turkey, straddling Europe and Asia has also banned asbestos. With its painful experience with asbestos, Europe can and must play a role in the promotion of public health in the rest of the world. 2.2.6. “Eastern” Europe. (Russia and countries of the former USSR). It seems that for a long time the iron curtain stopped the spreading of scientific discoveries relating to the devastation of asbestos. Russia, Kazakhstan, Ukraine, Belarus, Uzbekistan and the other countries of the former soviet block today consume a quarter of the asbestos production in the world, which is 500 000 tons. The kombinats built under the soviet regime only converted to “modern” capitalism. The traditional roofs of Ukraine, Georgia and Siberia are now in asbestos-cement and wastes are just about everywhere. Indiscriminate use of asbestos is also taking forms unknown in other countries: mining waste is recycled as rubble and ballast for railway tracks, all over the former soviet territory. The monotown of Asbest (monogorod Asbest) sums up this conundrum for the Russian authorities. The population, which has been decreasing for about twenty years, is currently a little over 60 000 inhabitants; the town lives and dies of asbestos which is its only economic activity. The town is the headquarters of the Kombinat of Uralasbest but also of the “International Trade Unions Alliance Chrysotile” which accuses the WHO of asbestophobia20 . The reaction of the Russian authorities is currently extremely weak, both in regards to the economic problems and problems of public health. On 7 September 2011 regulations21 on “hygiene requirements for the production and use of chrysotile and materials containing chrysotile asbestos” were published which quietly pick up parts of the recommendations from the C162 ILO Convention (dating from 1986), but omitting the most restrictive. The sole merit of this legislation is that it implicitly acknowledges chrysotile asbestos as a dangerous product. The legislation does not ban amphiboles completely, only their extraction and civilian use (according to Russian industrialists only chrysotile is exploited in Russia); it imposes labelling during 20 21

http://www.nochrysotileban.com/ SanPin 2.2.3.2887-11 (in Russian): http://www.rg.ru/2011/09/07/hrizotil-dok.html

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the transportation of chrysotile and personal protection in case of substantial levels of dust. A curious clause requests that they be no residential areas in the neighbourhood of chrysotile mines and waste dumps; however it is clear that the authorities have no intention of applying this to the towns of Asbest (town of the Uralasbest mine) or Yasny (town of the Orenburg Minerals mine). The Russian government therefore fails to protect its population; but it does act to protect the interests of its asbestos merchants. Having failed in its interventions with the European community in 1998 (to try to prevent the ban of asbestos at European community level), the Russian government, as we have already stated, took over from Canada the sabotage of the Rotterdam Convention, in May 2013, and to prevent the developing countries from being made aware of the dangers of chrysotile asbestos. 2.2.7. Asia. The most serious situation regarding asbestos is without doubt that of South-East Asia, which is the area with the highest concentration of people in the world and which consumes almost 70% of the asbestos produced in the world. The two most populated countries – China and India – are by far the biggest consumers, using annually more than a million tons of asbestos. The other big asbestos users in Asia are Indonesia, Sri Lanka, Thailand and Vietnam, followed by Bangladesh, Iran, Malaysia, Pakistan and the Philippines. In this region the only large countries to have banned asbestos are Japan and South Korea. The history of these two countries – which were big asbestos users, especially Japan – as well as the situation of their big neighbours, are described in the article by Sugio Furuya and Yeyong Choi (in this book). The dramatic conditions of the Indian workers and the hopes of seeing the Indian authorities come to reason on asbestos, are described in the text by Mohit Gupta (in this book). The highest incidence of mesothelioma recorded (see article by Richard Lemen, in this book) are in the industrialised countries having widely used asbestos and having a register of cancers. However the asbestos tragedy is currently mainly happening in China, India and the neighbouring countries22 . It is striking to see that the lessons from past use have not been learnt and it is disheartening to see the tragedy being repeated.

22 Some warnings : South China Morning Post, 14 November 2010, Mainland faces explosive rise in asbestos-related lung disease : , Mainland faces explosive rise in asbestos-related lung disease: http://www.scmp.com/article/730359/mainland-faces-explosive-rise-asbestos-relatedlung-disease, and ICIJ, 21 July 2010, Top asbestos user China faces epidemic of cancer : http://www.icij.org/project/dangers-dust/top-asbestos-user-china-faces-epidemic-cancer et India’s asbestos time bomb :http://ibasecretariat.org/india_asb_time_bomb.pdf

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2.3.The treatment of asbestos victims The scale of the global health catastrophe is described in the article by Richard Lemen (in this book). The epidemiology of mesothelioma in Italy, as well as the responses – incomplete of course – of the Italian authorities are described in the article by Enzo Merler (in this book); the reaction of the French authorities are recorded in the first part of this text. The inadequate policies of a great number of states is made clear in several other texts. Whereas Europe has stopped using asbestos and is firmly committed to a policy of risk prevention, followed in that by countries like Japan, as Canada and the United States are caught in the midst of contradictions between private interests and public health, far too many countries remain inactive and therefore become prey to unscrupulous business interests. The world once more presents harsh inequalities: – Inequality in the information about the risks presented by asbestos; – Inequality in terms of prevention of diseases caused by asbestos; – Inequality in terms of recognition (absence of a cancer register, absence of specialised doctors); – Inequality in terms of medical assistance; – Inequality in terms of compensation. The awful human cost, but also the substantial economic cost linked to the asbestos-related diseases is not being taken into account by too many governments.

3. National and international outlook 3.1.Outlook in France For a long time France trailed behind in terms of prevention of asbestosrelated diseases, but today it is among the countries which deal with the problem seriously and has acquired one of the best systems of compensation. However there remains a lot to do. – Improve prevention in buildings, regarding the asbestos in place; increase efficiency and application of the legislation; – Make victims compensation durable; – Improve medical and epidemiological research. Great efforts are being made in relation to research (see articles by Arnaud Scherpereel and Marie-Claude Jaurand, in this book) ; we need to continue our efforts. The conference from which these proceedings resulted was held in the palace of Luxemburg and it seems legitimate to recall the conclusions of the Senate report “The tragedy of asbestos in France: understanding the issue, improving workers’ compensation and drawing the lessons for the future”.

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It is necessary to draw lessons from the tragedy of asbestos, and in particular to accept the setting up of an enquiry and a trial to establish where responsibilities lie for this health catastrophe which was largely avoidable. And, on this point, it will be very useful to draw lessons from the Italian example. 3.2.Global outlook Regarding the global outlook, the main goal has been established by the WHO which aims to “Eliminate asbestos-related diseases” which of course involves stopping the use of asbestos. The aims of the WHO are more specifically: “In collaboration with the International Labour Organisation (ILO), other intergovernmental bodies and civilian society, the WHO is working with countries towards the elimination of asbestos-related diseases along the following strategic lines: – by recognising that the most eﬃcient way of eliminating these diseases is to put an end to all types of asbestos use; – by providing information on the available safer substitutes for asbestos and by developing economic and technical mechanisms to stimulate this substitution; – by adopting measures to prevent exposure to the asbestos in place and the asbestos released during the removal of this mineral (asbestos abatement); and – by improving the diagnostic, treatment and social and medical rehabilitation of asbestos patients and by establishing a register of people who are or have been exposed to this mineral.” These goals go against very localised economic interests but which still wield a big influence on the public authorities in some countries. It is for example quite insane that a handful of industrialists were able to convince the government representatives of a tiny group of countries to oppose the registration of chrysotile asbestos on the list of dangerous products as provided by the Rotterdam Convention on the prior informed consent procedure23 . 23 Among more than 150 participants, the handful of countries which voted against are as follows. In 2004 : Canada, assisted by observers from Russia and China (the three biggest producers at that time) ; in 2006 : Canada, supported by Iran, Kirghizstan, Peru, India and again as an observer, Russia ; in 2008 : Canada, supported by India, Kazakhstan, Kirghizstan, Mexico, Pakistan, the Philippines, Ukraine and Vietnam ; in 2011 : Canada alone objected ; in 2013 : Russia and India – the biggest producer-exporter and the biggest importer – were supported by Vietnam, Kazakhstan, Kirghizstan, Ukraine and Zimbabwe.

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The attempted misuse of science and of international agencies (ILO, WHO and IARC) used to be a Canadian speciality, today Russian “diplomacy” has taken up the dubious torch. Eradicating asbestos-related diseases, of course requires the identification and recognition of its dangers and a halt to the misinformation. It means denunciation of the publications funded by the companies and sometimes their insurers and the banishment of pseudo-scientists who fabricate this false science. It means that governments must: – take the problems of public health into consideration before the purely commercial interests; – compare the costs in human lives, care and compensation with the financial gains of a few unscrupulous industrialists; – take into account the cost of asbestos removal; – conclude that it is necessary to stop using asbestos; – put social plans in place for the mining towns where the cessation of asbestos extraction would lead to substantial unemployment: towns of Asbestos and Thetford Mines in Canada, Minaçu in Brazil, Asbest (Asbest) and Yasny (⌫sny⇢) in Russia, Zhitikara (⌘itikara) in Kazakhstan, the Shabanie mines in Zimbabwe and too many mining towns of China; – take measures to improve recognition of the diseases; – develop research for mesothelioma and lung cancer therapies. We have mentioned the position of the World Health Organisation, many international science, public health or economic organisations also work towards a ban on asbestos and the eradication of the diseases: • The International Labour Organisation (ILO) stipulated in its 1986 Asbestos Convention (no.162, article 10) : “where necessary to protect the health of workers and technically practicable, national laws or regulation shall provide for one or more of the following measures: a) replacement of asbestos or of certain types of asbestos or products containing asbestos by other materials or products or the use of alternative technology, scientifically evaluated by the competent authority as harmless or less harmful, whenever this is possible; b) total or partial prohibition of the use of asbestos or of certain types of asbestos or products containing asbestos in certain work processes.” The ILO strengthened its recommendations with its 2006 resolution on asbestos which declares: “the elimination of the future use of asbestos and the identification and proper management of asbestos currently in place are the most eﬀective means to protect workers from asbestos exposure and to prevent future asbestos-related diseases and deaths”

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• The World Trade Organisation (WTO) took in the complaint by Canada on asbestos and gave a ruling first in 2000 and again in the 2001 appeal (see article by Michel Parigot, in this book). After having remarked that the ban on asbestos was contrary to the GATT agreements, the WTO acknowledged that the ban on asbestos « was a public health measure necessary for the protection of human life and health and therefore perfectly justified under article XX of the GATT agreement » ; • The World Bank published precise recommendations in 2009, stating in particular that “asbestos-containing materials should be avoided in new construction, including construction for disaster relief .” • In 2012 Societies of Epidemiology from all over the world called for «a global ban on the mining, use, and export of all forms of asbestos; called specifically on the major asbestos exporting countries – Brazil, Canada24 , Kazakhstan, and Russia – to respect the right to health by ceasing the mining, use, and export of asbestos, and providing transition assistance to their asbestos-mining communities; called specifically on the major asbestos-using countries – Brazil, China, India, Indonesia, Iran, Kazakhstan, Russia, Sri Lanka, Thailand, Ukraine, Uzbekistan, and Vietnam – to cease use of asbestos» ; • The International Union Against Cancer (UICC) reminded, during its World Congress in 2012 in Montreal that “asbestos causes human cancers of the lung, larynx, ovaries as well as mesothelioma of the pleura and peritoneum” and called on “the abandonment of mining, use and export of all forms of asbestos.” We shall finish with an appeal to international solidarity. It is worth remembering that the asbestos industry has expanded through the big European companies (Eternit, Saint-Gobain, Turner & Newall, etc.), NorthAmerican (Johns Manville, Union Carbide – bought by Dow Chemicals – etc.) or Australian (Hardie). It is therefore natural to support compensation requests to exporting countries, especially those which actively participated in the campaign of misinformation. Received 25 March 2014 Translated from French by Fleur Pettie

24 The declaration dates from 4 June 2012, Canada had not yet stopped producing and exporting asbestos.

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Bibliography Documents and papers 1) Amiante : les produits, les fournisseurs. Booklet from Institut National de Recherche sur la Sécurité, INRS (National Institute of research on Safety): http://www.inrs.fr/accueil/produits/mediatheque/doc/ publications.html?refINRS=ED%201475 2) Document from Andeva, Classification des produits contenant de l’amiante (classification of products containing asbestos) : http://www.andeva.fr/?-Liste-de-produits-contenant-de-l3) Eternit : l’amiante-ciment en France, M. Hindry, in «Eternit and the Great Asbestos Trial», February 2012 http://www.andeva.fr/?Eternit-l-amiante-ciment-en-France http://www.ibasecretariat.org/eternit-great-asbestos-trial-toc.htm 4) Nature 389, 649-650 (16 October 1997), French ministries in argument over release of asbestos report: http://www.nature.com/nature/journal/v389/n6652/pdf/389649a0.pdf 5) Libération, 28 October 1997, Amiante: le rapport qui fâche. La publication des conclusions de l’Inserm s’est heurtée à une série de blocages: http://www.liberation.fr/sciences/1997/10/28/amiante-le-rapport-quifache-la-publication-des-conclusions-de-l-inserm-s-est-heurtee-a-une-seriede_217907 6) United Nations Universities. Asia’s emerging asbestos epidemic, Syed Aljunid, 2011: http://unu.edu/publications/articles/asias-emerging -asbestos-epidemic.html 7) El Asbesto y sus riesgos, alternativas : PERU, Eva Delgado Rosas. Seminario Nacional de Salud Laboral y Medio Ambiente CCLA – ILA, Bogota, Colombia, Fevrier 2006. http://fr.scribd.com/doc/41168500/Asbesto-en-Peru 8) V. Delgermaa, K. Takahashi, EK Park, GV Le, T. Hara, T. Sorahan. Global mesothelioma deaths reported to the World Health Organization between 1994 and 2008. Bulletin of the World Health Organization 2011, 89:716-724C. http://www.who.int/bulletin/volumes/89/10/11-086678/en/ 9) China Mining (asbestos), Development and Utilization http://www.chinamining.org/Facts/2006-10-17/1161064167d1619.html China Mining (asbestos), Supply and Demand http://www.chinamining.org/Facts/2006-10-17/1161064322d1620.html French and European Institutions 10) Rapport d’expertise collective INSERM, Eﬀets sur la santé des principaux types d’exposition à l’amiante, 1996: http://lara.inist.fr/handle/2332/1373

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11) Directive 83/477/EEC - exposure to asbestos at work of 19 September 1983 on the protection of workers from the risks related to exposure to asbestos at work : https://osha.europa.eu/fr/legislation/directives/exposureto-chemical-agents-and-chemical-safety/osh-directives/25 12) Commission Directive 1999/77/EC of 26 July 1999 adapting to technical progress for the sixth time Annex I to Council Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (asbestos): http://eurlex.europa.eu/legal-content/EN/TXT/?uri=CELEX:31999L0077 13) File “Asbestos” sur le site European Trade Union Institute (ETUI): http://www.etui.org/en/Themes/Sante-et-securite/Amiante/ Sub-file “Getting to a global ban”: http://www.etui.org/en/Themes/ Sante-et-securite/Amiante/Vers-une-interdiction-mondiale International institutions 14) International Joint Policy Committee of the Societies of Epidemiology, Position statement on Asbestos (Énoncé de position sur l’amiante) . Available in English, French, Portuguese and (summary) in Spanish, Russian, Arabic and Chinese: http://www.jpc-se.org/ 15) ILO : Asbestos: the iron grip of latency, 10 January 2006 http://www.ilo.org/global/about-the-ilo/newsroom/news/ WCMS_076282/lang--en/index.htm ILO adopts new measures on occupational safety and health, the employment relationship, asbestos, 15 June 2006 http://www.ilo.org/global/about-the-ilo/media-centre/press-releases/ WCMS_070506/lang--en/index.htm C162 - Asbestos Convention (no 162) , 1986 http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0:: NO:12100:P12100_INSTRUMENT_ID:312307:NO 16) WHO : Asbestos: elimination of asbestos-related diseases. Fact sheet N˚343 July 2010 http://www.who.int/mediacentre/factsheets/fs343/en/ whqlibdoc.who.int/hq/2006/WHO_SDE_OEH_06.03_eng.pdf?ua=1 ILO/WHO Outline for the Development of National Programmes for Elimination of Asbestos-Related Diseases, 2008 http://www.ilo.org/safework/info/publications/WCMS_108555/lang-en/index.htm OMS : Eliminación de las enfermedades relacionadas con el asbesto, Nota descriptiva N˚343, Julio de 2010 http://www.who.int/mediacentre/factsheets/fs343/es/index.html http://whqlibdoc.who.int/hq/2006/WHO_SDE_OEH_06.03_spa.pdf VOZ. Asbest : likvidaci bolezne⇢, sv zannyh s asbestom. Informacionny⇢ b⇠lleten~ N˚343 I⇠l~ 2010 g.

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http://www.who.int/mediacentre/factsheets/fs343/ru/index.html WHO 2013 publication ; The Human and Financial Burden of Asbestos in the WHO European Region: http://www.euro.who.int/en/health-topics/environment-and-health/ occupational-health/publications/2013/the-human-and-financial-burdenof-asbestos-in-the-who-european-region Alma-Ata declaration (French, English, Russian) www.euro.who.int/_data/assets/pdf_file/0005/113882/E93945.pdf www.euro.who.int/_data/assets/pdf_file/0009/113877/E93944.pdf www.euro.who.int/_data/assets/pdf_file/0007/113875/E93944R.pdf 17) WTO : Dispute settlements DS135 European Communities – Measures Aﬀecting Asbestos and Products Containing Asbestos: http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds135_e.htm 18) Union for International Cancer Control (UICC) http://www.uicc.org/advocacy/advocacy-vision-strategy/cancer-prevention UICC position statement asbestos (English) : UICC_Position_Asbestos_FINAL.pdf UICC position statement asbestos (French) : UICC_Position_Amiante_2012-FR.pdf UICC position statement asbestos (Portugese) : UICC_Position_AsbestosPORT.pdf 19) World Bank Good Practice Note: Asbestos: Occupational and Community Health Issues, May 2009 http://siteresources.worldbank.org/EXTPOPS/Resources/ AsbestosGuidanceNoteFinal.pdf Others: Asbestos - hazards and safe practice for clear-up after tsunami: http://www.searo.who.int/entity/emergencies/documents/abestos.pdf

Appendix 1

List of contributors – Guadalupe AGUILAR MADRID Physician, epidemiologist, Instituto del Seguro Social, Mexico. MEXICO – Gerd ALBRACHT Ex-head of the section for women, labour and social matters for Hesse state ministry, main adviser for the International Association of Labour Inspection (IALI). GERMANY – Pier-Giacomo BETTA MD, pathologist, technical consultant for Italian magistrates. ITALY – Alain BOBBIO Secretary and member of the board of ANDEVA. FRANCE – Anneke de BRES Physician, member of the Comité Asbestslachtoﬀers. NETHERLANDS – Arnaud de BROCA Main secretary of the national association for disabled people (FNATH). FRANCE – Tinka de BRUIN President of the Dutch Committee of Asbestos Victims (Comité Asbestslachtoﬀers), Hoorn, NETHERLANDS – Barry CASTLEMAN Health and environmental consultant. Author of “Asbestos, medical and legal aspects”, ed. Wolters Kluwer, 2004. UNITED STATES – Hermano ALBUQUERQUE de CASTRO Pneumologist, Foundation Oswaldo Cruz, Rio de Janeiro, director of the National School of Public Health Sérgio Arouca (ENSP/FIOCRUZ)/ Health ministry. BRAZIL

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List of contributors

– Yeyong CHOI Director of the Asian Citizen’s Center for Environnement and Health, Public Health School of the national university of Seoul, Korea. SOUTH KOREA – Tina da CRUZ Lawyer, Asbestos relief Trust, Johannesbourg. SOUTH AFRICA – Jean DALLA TORRE Mesothelioma patient, member of the board of ANDEVA. FRANCE – François DESRIAUX Journalist (magazine “Santé et Travail”), vice-president of ANDEVA. FRANCE – Sugio FURUYA Physician, Ban Asbestos Network Japan (BANJAN) and Japan Occupational Safety and Health Resource Center (JOSHRC). JAPAN – Fernanda GIANNASI Civil engineer, labour inspector for the Labour Ministry, head of the asbestos program for the region of São Paulo (retired August 2013), coordinator of the virtual network for asbestos ban in Latin America; founder of ABREA. BRAZIL – Daniel GREEN Société pour Vaincre la Pollution (SVP). QUÉBEC, CANADA – Evelyn GLENSK Occupational medecine institute, Hambourg. GERMANY – Andres GOMEZ Student (History department, EHESS). COLOMBIA – Mohit GUPTA Coordinator of Occupational and Environmental Health Network of India (OEHNI). INDIA – Orjana HANXARI PhD candidate, university of Tirana. ALBANIA – Romeo HANXARI Professor. Founder of the Association for New Environmental Policies (ANEP) and the “Anti-A Coalition” – Associations supporting the asbestos victims in Albania. ALBANIA – Marc HINDRY Mathematician, university Paris Diderot Paris 7 and member of the board of ANDEVA. FRANCE

§List of contributors

357

– Marie-Claude JAURAND Researcher in biology, INSERM UMR-674, Paris, and International Mesotelioma Interest Group (IMIG). FRANCE – Eric JONCKHEERE Founder of the Belgian Association of Asbestos Victims (ABEVA). BELGIUM – Laurie KAZAN-ALLEN Coordinator of International Ban Asbestos Secretariat, founder and editor of the British Asbestos Newsletter. UNITED KINGDOM – Richard LEMEN Physician, epidemiologist, Department of Environmental and Occupational Health, Emory University, Atlanta, Ph.D, MSPH, Assistant Surgeon General (retired). UNITED STATES – Carmen MANCHEÑO Occupational physician, Confederacíon Sindical de Comisiones Obreras. SPAIN – Patrick MARTIN Member of the Canadian Parliament. CANADA – Enzo MERLER MD, epidemiologist, Veneto Mesothelioma Registry, Occupational Health Unit, Local Health Authority, National Health Service (SPISAL AULSS 16), and Foundation of Asbestos Victims “Bepi Ferro", Padua. ITALY – Cyro NOVELLO Director of the health division for the state of Rio de Janeiro. BRAZIL – Chantal PAKOSZ Asbestos widow, member of the board of ANDEVA. FRANCE – Michel PARIGOT Mathematician, CNRS and University Paris Diderot Paris 7, vice-president of ANDEVA. FRANCE – Juan-Carlos PAÚL President of the Associacíon de Víctimas del Amianto (AVIDA). SPAIN – Bruno PESCE Associazione Familiari Vittime Amianto (AFEVA). ITALY – Pierre PLUTA Retired worker from the shipyards of Dunkirk, president of ANDEVA. FRANCE – Alessandro PUGNO Film maker, activist for AFEVA. ITALY

358

List of contributors

– Linda REINSTEIN Cofounder and president of ADAO (Asbestos Disease Awareness Organization). UNITED STATES – Kathleen RUFF Human right activist, Rideau Institute, founder of RightonCanada, author of “Exporting Harm; Marketing Asbestos". CANADA – Anne-Marie SAINT-CERNY Société pour Vaincre la Pollution (SVP). QUÉBEC, CANADA – Arnaud SCHERPEREEL Pneumologist and Thoracic Oncologist - Lille CHRU Hôpital Calmette and Unité INSERM U1019 (Pasteur Institute, Lille) University of Lille Nord, National coordinator of the network of experts MPM “MESOCLIN”. FRANCE – Lisa SINGH Member of the Australian Senate. AUSTRALIA – Eliezer João de SOUZA Eternit Brasil employee (retired), president of ABREA. BRAZIL – Fernand TURCOTTE Professor emeritus of preventive medecine and public health, university Laval. CANADA – José VALDES Confederacíon Sindical de Comisiones Obreras. SPAIN – Gisélia VICENTIN Asbestos widow. Member of ABREA. BRAZIL – Marie-José VOISIN Economist, university Paris Diderot Paris 7 and member of the board of ANDEVA. FRANCE – Yvonne WATERMAN Jurist. Founder of Waterman Legal Consultancy. NETHERLANDS – Mireille WUILBEAUX Asbestos widow, member of the board of ANDEVA. FRANCE

Appendix 2

Scientific Commitee •

Marcel GOLDBERG

•

Claude GOT

•

Marc HINDRY

•

Albert HIRSCH

•

Marie PASCUAL

•

Marie-José VOISIN

MD, epidemiologist, INSERM and university of Versailles Saint-Quentin MD, public health expert University Paris Diderot Paris 7 and ANDEVA MD, Pneumologist, National Ligue Against Cancer MD, occupational medical doctor University Paris Diderot Paris 7 and ANDEVA

– 359 –

Appendix 3

Organization Commitee •

Hélène BOULOT

•

Virginie CAUWET GOMEZ

•

Marc HINDRY

•

Patrice RAVENEAU

•

Marie-José VOISIN

Volunteer for ANDEVA

Administrative secretary for ANDEVA

University Paris Diderot Paris 7, administrator for ANDEVA Administrative manager for ANDEVA University Paris Diderot Paris 7, administrator for ANDEVA

– 361 –

Appendix 4

Conference Program – 12th October 2012 Palais du Luxembourg

Journée internationale des victimes de l’amiante Vendredi 12 octobre 2012 Salle Clemenceau – 9h00 / 18h00

9h30/12h30 – Matinée / morning / mañana / mattinata L’état de la science : Épidémiologie et recherche médicale/ Epidemiology and medical research 9h30 / 9h45 Ouverture Marc Hindry et Madame la sénatrice Annie David 1ère partie : épidémiologie (présentation Marcel Goldberg) 9h45 / 10h15 : Richard Lemen (USA) • Epidemiology of asbestos disease ; history and knowledge

10h20 / 10h40 : Enzo Merler (ITA) • Mesotelioma: epidemiologia, riconoscenza ed indennizzo – l’esperienza italiana 10h45 /11h : Guadalupe Aguilar (MEX) • La epidemia de Mesotelioma en Mexico

11h /11h05 : Laurie Kazan Allen (GBR) • Charting the changing pattern of asbestos production and use (1950–2012) Pause, break, pausa 2ème partie : recherche médicale (présentation Albert Hirsch) 11h25 / 11h45 : Arnaud Scherpereel (FRA) • Traitement du mésothéliome pleural – progrès et limites – 363 –

364

Programme

11h50 / 12h05 : Piergiacomo Betta (ITA) • Un patologo in aula giudiziaria – Il processo Eternit e la convalida delle diagnosi di mesotelioma delle vittime 12h10 / 12h30 : Marie Claude Jaurand (FRA) • Génotoxicité des fibres d’amiante : approche biologique

12h30 / 12h40 : Intervention de Jean Denis Combrexelles, Directeur Général du Travail 12h40 / 14h00 Pause repas : Lunch break, Almuerzo, Pranzo Buﬀet, salle René Coty du Palais du Luxembourg 14h00 / 18h00 – Après-midi / Afternoon / Tarde / Pomeriggio L’état du monde : utilisation de l’amiante, législation, situation des victimes/ asbestos use, legislation and victims situation 14h00 / 14h05 : Ouverture Christian Hutin (Député du Nord) I – Utilisation et usage contrôlé dans les pays en développement 14h10 / 14h40 : Introduction a) Mohit Gupta (IND) : Asbestos in India; Struggles and realities ; b) Hermano Castro (BRA) : Amianto no Brasil; um problema de saúde publica ; c) Kathleen Ruff (CAN) : Defeating government and asbestos propaganda in Québec and Canada ; 14h40 / 15h10 : 1ère Table ronde (1st panel) Présentateur / modérateur : Laurie Kazan Allen (GBR) Participants : Fernand Turcotte (CAN), Mohit Gupta (IND), Yeyong Choi (COR), Guadalupe Aguilar (MEX), Fernanda Giannasi (BRA), Marc Hindry (FRA) II – Indemnisation et traitement de victimes 15h15 / 15h45 : Introduction a) Tina Da Cruz (ZAF) : The South African Trust ; b) Eric Jonckheere (BEL) : Indemnisation civile ; c) Marie-José Voisin (FRA) : le FIVA en France ; 15h45-16h15 : 2ème Table ronde (2nd panel) Présentateur / modérateur : François Desriaux (FRA) Participants : Juan Carlos Paul (ESP), José Valdes (ESP) Eric Jonckheere (BEL), Tina Da Cruz (ZAF), Tinka De Bruin (NED), Arnaud De Broca (FRA), Michel Parigot (FRA)

§Programme

365 Pause, break, pausa

III – Prévention et actions internationales 16h30-17h10 : Introduction a) Bruno Pesce (ITA) : Il Processo Eternit in Italia ; b) Pat Martin (CAN) : Asbestos and Canada ; c) Linda Reinstein (USA) : Asbestos: Legal and Lethal in the USA ; d) Lisa Singh (AUS) : Australia’s deadly asbestos legacy ; 17h10-17h40 : 3ème Table ronde (3rd panel) Présentateur/modérateur : Barry Castleman Participants : Bruno Pesce (ITA), Daniel Green (CAN), Pat Martin (CAN), Lisa Singh (AUS), Linda Reinstein (USA), Laurie Kazan Allen (GBR), Sugio Furuya (JAP) , Alain Bobbio (FRA) 17h40 : CONCLUSIONS – Pierre Pluta & Kathleen Ruff

Cette manifestation scientifique a reçu le soutien des organisations suivantes: This scientific conference received support from the following organisations: – Conseil Régional d’Île-de-France ; – Ligue Nationale contre le cancer ; – Institut National de la Santé et de la Recherche Médicale (INSERM) ; – Direction Générale du Travail au Ministère du Travail (DGT) ; – Mutualité française

International Day of Asbestos Victims State of Science - State of the World The proceedings of the symposium "international day for asbestos victims" organised in Paris, 12th October 2012 by the French National Association for the Defense of Asbestos Victims - ANDEVA - are built in two parts. The first part "state of science" includes texts on the history and state of epidemiology of asbestos diseases by R. Lemen, on the epidemiology of asbestos-related diseases in Italy by E. Merler, in Québec, Canada, by F. Turcotte and in Brazil by H. Castro, followed by texts on medicine and fundamental research by A. Scherpereel, P-G. Betta and M-C. Jaurand. The second part "state of the world" displays a global panorama of the situation with respect to the use and exposure to asbestos, the different legislations, situation and compensation of victims, struggles and actions for public health: economic and geographical data about asbestos trade (L. Kazan-Allen), the historical responsibility of Canada (P. Martin and K. Ruff), the situation in United States (L. Reinstein), the two judgements with international repercussions on banning asbestos, that is, the cancellation in 1991 of the EPA regulations in United States (L. KazanAllen) and the rejection of the complaint of Canada to WTO against France in 2000 (M. Parigot), the contrasting situations of India (M. Gupta), Japan and Korea, with an overview of the tragic situation in Asia, notably in China (S. Furuya and Y. Choi), also in Brazil (F. Giannasi) and Australia (L. Singh), the issue of compensation is described in the context of South Africa (T. da Cruz), France (M-J. Voisin) and the Netherlands (T. de Bruin), the current European situations in Belgium (E. Jonckheere), Germany (G. Albracht) and Albany (R. Hanxari), finally the global impact of the Eternit trial in Italy (B. Pesce) and an overview of the general situation in France and throughout the world (M. Hindry and P. Pluta). This book has a double purpose: to increase diffusion of scientific knowledge and to develop an international public health movement;; it should help to provide better awareness of the risks and damages due to asbestos and stimulate better public health policies to fight this plague at regional, national, European and worldwide level.

10 € ANDEVA http://www.andeva.fr