Document 5k3ne7orz7dKqa321L1xwjx7D

FILE NAME: Foster Wheeler (FW) DATE: 2008 Feb DOC#: FW032 DOCUMENT DESCRIPTION: Legal - Declaration of Lawrence Stilwell Betts May. 7. 2008 10:05A.M Ho. 9700 P- 1 BRYDON tlUVjU 135 M ain Streep SO^-PIoor San Francisco, CA 94105 K t e (415)808-0300 Facsmil?! (415) 808-0333 wgfor Defendant IWHEBUERLLC u n it e d STATESd is t r ic t c o u r t NORTHERN DISTRICT OF CALIFORNIA WILUE SCOTT and PATRICIA SCOTT, Plaintiffs, vs. (ASBESTOS) US.D.G Case No. _ _ ---------- --------Alameda County Superior Court Case No. RG08379519 a t o o d &m o r r illc o .,i n c ca m $ t OOMPANY -xtfc -;v4i,rii<ftUv'and:a s p a re n t'^ tr eB BRYDOH gi5oM&*nPsnaOEbkerbk May. 7. 2008 10:05AM BUFFALO PUMPS, IN C ; BW/IP as BORO-YVAJUNBR PRODUCTS, successot to BYRON 1ACKSON PUMPS; CARRIER JC ^ R A T 1 0 N ; CARVERPUMP g ra S a S B R O O K S , PRANOSCO; CRANE CO-; CROSBY _ VALVE, IN C; CROWN, CORK &SEAL A w '.r-a? t.-m nlonknow n CALIFORNIA; DURABLA 10 DURAMETALLIC C C W )R A liL BULLARD COMPANY; EATON CORPORATION, to d iv d ^ y m d as 13 14 JE B S S S S S S m S m . 15 16 17 M W T B C H N O I^ a g ! - 18 GENERAL ELECTRO u jw t a 19 GCOOMODPYAENAYR; GTIORUEL&DRSUPBUBMEPRS^ m i 20 INCORPORATED; FRAYMAMNE, INC., | . . > rr nrAKl Tk.MATTTDTATP. TNC.I 21 INC foroly knownasKAEER 22 23 individually and as successoi^tntew st 24 parDenUVbalKltolcroegjjow,uf-oiirfmtuveirMlyWknMovw-n--a-s,y' 25 & g business successor-jn- 26 INGEBSOLl-k a n u ' im: CORPORATION, Individually 27 oarerit alter ego and successorm-interest lo MCDONNELL & 28 THORPE & SON, IN C.: TERGUSON, BKTOON HUOO& PARKER OJMJ^SWW ii Ho. 9700 P. 2 May. 7. 2008 10:05AM sssssssas^Sm wa -k*rxrfxTrrmKt MTTIA. INC.; No. 9700 COMPANY; OWENS-ILLINOIS, IN C , C o S ra m S ^ -H A N M T O J ^ s K ^ s s s s s r" I f e d h K ty and ^ c c ^ o r ^ in te r e s t INDUSTRIES INC.; RAYTHEON COMPANY; ROCKWELL S S S S ^ .ra c K w a iN C , iivRvidnay, onnerly S S ra W A T O S to rc MECHANICAL COMPANY; SOCO WEST, IN C ; SPIRAX SARCO,RC/SPX PROCESS EQIPMENT, indivldually and as s u a ^ o t-m ^ te re ^ t^parent and altor eeo to MARLEY COOLING ^T ^ O L O G IE S , IN C; STERUNG. BRYDON Hu13q5oMA&WpSTa*EwBTe. May. 7. 2008 10:05AM No. 9700 P. 4 1HOMSAS DEE ENGINEERING CO., IN C ; THORPE INSULATION COMPANY; THYSSENKRUPP ELEVATOR CORPORATION; TUTTLE & BAILEY; TYCO INTERNATIONAL (US) INC. individually and as parent, alter ego and successor-in-interest to ANDERSON GREENWOOD AND KUNKLE VALVE; UNIRYAt, INC; VALLEY SHEET METAL CO.; VIACOM IN C, successor by merger to CBS CORPORATION and .. PUMP IN C , A UNIT OF IDEX CORP.; 8 WARREN PUMPS, LLC; WATTS WATER TECHNOLOGIES, INC. individually and as parent, alter ero and successor-in interest to W A T INDUSTRIES, INC. as 10 successor-in-interest to LESLIE CONTROLS, IN C and MUELLER 11 STEAM SPECIALTY; WEIR VALVE & CONTROLSUSA INC. individually and 12 as parent, alter ego and successor-in interest to ATWOOD & MORRILL CO., 13 IN C ; WESTBUSNE SUPPLY INC, . individuaUy and as paren t altet ego and 14 successor-in-inberest to P.E. O'HAIR & CO.; YARWAY CORPORATION; YORK 15 INTERNATIONAL CORPORATION WHICH WILL DO BUSINESS IN 16 CALIFORNIA AS: YORK HEATING AND AIR CONDITIONING; ZRN 17 INDUSTRIES, INC.; and FIRST DOE through TWO HUNDREDTH DOE, 18 inclusive, 19 Defendants, 20 21 l Lawrence Stilwell Betts, MD, PhD, CM , FACOEM, declare that: 22 1. My name is Lawrence Stilwell Bette. I am a "retired" United States Navy 23 rapfnin with an active professional practice based in Poquoson, Virginia. Ab reflected in 24 my Curriculum Vitae (Exhibit 1), I am the President of a medical corporation that is based 25 upon applying the principles and methods of preventive m edidne. I routinely integrate 26 27 28 IWDON VHu* Parker V'tSWBr and apply occupational and environmental m edidne, toxicology, and industrial hygiene to consult or work with difficult or complex medical cases where treatment, or exposure, or possible consequences of exposure, is in question. However, the emphasis of my May. 7. 2008 10; 06AM No, 9700 P .5 . 1 entire career has been prevention o illness and the promotion of health through the 2 Integration of my scientific and medical knowledge and experience. After m y retirement 3 from the Navy in 2001,1was presented the VADM Richard A- Nelson Award for my 4 career contributions to Navy and M arine Corps readiness through leadership In 5 prevention of disease and promotion of health. My professional practice still includes 6 work with the Navy and other m ilitary services, as well as non-military federal agencies, 7 industry, professional organizations, and academically- and privately-practicing 8 professionals. In addition to recurrent consultations, I teach, mentor, perform research, 9 develop prevention and treatm ent protocols, and write medical articles and text chapters. 10 I am a Professor at the Eastern Virginia Medical School in the Department of Family and 11 Community Medicine and a Clinical Professor of Physiological Sciences. W ith approval 12 from my superiors in the Navy, I have been academically affiliated w ith Eastern Virginia 13 Medical School for tile past twenty-seven years- I serve on severalnational committees 14 addressing broad, as w ell as specific, issues in occupational and environmental health. I 15 am board certified in both Occupational M edidne by the American hoard, of Preventive 16 Medicine, and in the comprehensive practice of Industrial Hygiene by the American 17 Board of Industrial Hygiene. In the practice and application of toxicology, it is well 18 known that ALL chemicals are toxic as a consequence of dose (Pamselsus [1493-1541]: 19 "Sola dosisfiid t venemm" - "Dose alone makes the poison'') and that "hazard" is a 20 consequence of how a chemical is used- The anticipation, recognition, evaluation, and 21 control of hazardous conditions are the fundamentals of industrial hygiene, as well as my 22 practice of preventive m edidne and public health. 23 2. During m y Navy career spanning three decades, had experiences ranging 24 from the provirion of "field" services underway and on shore as a junior industrial 25 hygiene officer, to the oversight of the medical and sdentific aspects of a robuBt 26 occupational health program as a senior Navy officer. I have spent time at sea on a 27 num ber of United States Navy and United States Naval ships. I served as a physician on Y ----------7 /8 \ fiHYpah HUSpa^ARKER i3yMMBnoBgr the USS KITTY HAWK (CV-63) during its Service life Extension Program (SLEP) in the 5 May. 7. 2008 10:06AM Ho. 9700 P. 6 1 Philadelphia Naval Shipyard from 1987 to 1989. My experiences and training enabled me 2 II to become qualified as a Surface W arfare MedicalDepartm ent Officer. Based upon my 3 11 pnonfifir and medical training, and experience as a Navy officer for three decades, I am 4 11 generally familiar w ith the industrial products that were used by die Navy and the Navy 5 II w ork environments, both ashore and afloat I am also familiar w ith fhe history and 6 practice of the Navy occupational health program from its early days before W orld War 7 |1 n until the present time.__________________________ ______________________ 8 II 3, I understand Mr. Willie Scott apparently served on active duly as an 9 11 electrician''s mate and electrician in five United States Navy from 1944 to 1946, and again 1 0 1| from 1947-1963. I also understand that Plaintiffs are claiming that Mr. Scott served or 11 worked aboard the U5S BERSTAGI, the USS REPOSE, the USS BENEVOLENCE, the USS 12 SPERRY, the USS REDHSH, the USS MT. BAKER, the USS RASHER (or USS RUSHER), 13 the USS SBA FOX, and the USS CHAER (or USS CHAR), and that he also worked on 1 4 1 projects at various shore activities. As a result of his active duty tasks and associated 15 asbestos exposures, the plaintiffs claim that he developed an asbestos-related condition. I 16 further understand that Plaintiffs allege that Foster W heeler is one of a number of 17 companies responsible for asbestos-containing products to which plaintiffs allege that 18 Mr. Scottwas exposed. 19 4. During the time periods that these ships were b u ilt it is my understanding 20 that Foster Wheeler manufactured and delivered boiler and auxiliary equipment to tile 21 Navy pursuant to Navy contracts, some of which m ay or may not have ended up on 22' ships that Mr. Scott worked aboard. In any event, however, any such boiler and auxfliaiy 23 || equipment manufactured and supplied by Foster W heeler in fulfillment of government 24 contracts followed the specifications set forth by the United States Government detailing 25 required components, materials, and performance characteristics. The U.S. Navy would 26 have accepted delivery of such boiler, auxiliary equipment, and related manuals only if 27 they m et these specifications. The Navy would not have accepted, commissioned, or 28 | Brydbn Hugo* Parker hsmaotctwet perm itted a Navy vessel to steam w ith boiler and auxiliary equipment that did not May. 7. 2008 10:06AM No, 9700 P. 7 l comply with precise specifications set forth by the Navy, which includes providing any 2 labeling of the equipm ent 3 5. To the extent that Poster Wheeler ever delivered boiler and auxiliary 4 equipm ent to the government for use on Navy vessels in the 1940s - 1950s and thereafter, 5 the U.S. Government already recognized that the prolonged inhalation of sufficient 6 concentration of asbestos fibers could result in pulmonary disease. Indeed, this 7 knowledge was held by the U.S. Government prior to the period of construction, and Mr. 8 Scott's work, on any such ships. Based upon that scientific and medical knowledge, die 9 U.S. Government generally, and the Navy specifically, by the early to mid 19409 had 10 already developed an active and robust program to control exposure to asbestos 11 concentrations recognized to be harm ful, and medically monitored personnel exposed to 12 those levels. Additionally, the Navy established engineering control procedures 13 (including isolation, exhaust ventilation, wet methods, and process changes to minimize 14 dust release) and training, and required die use of respiratory protection for personnel 15 considered to be at risk of excessive exposure during dusty operations. 16 6. The information possessed by the U.S; Government during this period (and 17 die comprehensive occupational health program based upon this .infonnatfon), and 18 thereafter and until such time as M r. Scott's work on Navy vessels ended, with respect to 19 the specification and use of asbestos, and die health hazards associated with its use 20 aboard Navy vessels, far exceeded the information that possibly could have been 21 provided by a boiler manufacturer such as Foster Wheeler. Based upon the state-of-the- 22 art knowledge at that period, die U.S. Government was fully aware of die health hazards 23 of asbestos and had a program to control exposure of personnel and monitor their health. 24 This existed before World War II and through the period that Mr. Scott was working on \/ 23 any Navy vessels - and it continues until this day. 26 7. In preparing this declaration, I have relied upon my personal and 27 professional knowledge and experience as an industrial hygienist and an occupational 28 BKYDOH Hugo& Parker USMAJNSWm medicine physician, my operational and industrial experiences from my total Navy 7 May. 7. 2008 10:06AM No. 9700 P. 8 1 career, m y review of historical documents regarding the Navy's knowledge and the 2 scientific and medical communities' knowledge of the hazards of asbestos, and my 3 num erous communications w ith industrial hygienists and physicians who worked for the 4 Navy and the United States Public H ealth Service dating back to the 1940s. 5 S. The N avy's specification and use of asbestos aboard ships, including in or 6 on boilers and other high tem perature equipment, was not by chance or based on any 7 requirem ents of Foster Wheeler. The extensive use of asbestos w as predicated upon S military necessity. As discussed in their landm ark paper addressing the use of asbestos 9 in the Navy, Fldecher and coworkers (1946) (Exhibit 5) state: 10 "An important ingredient ofpipe covering material used on U.S. Navy vessels is amosite,..The chitfreasonsfin Me wide use ofamsHefelt and pipe covering in 11 naval work, are its low thermal conductivity, light weight, strength and refractoriness. When thefelt and pipe covering werefirst developed, we weresWl 12 budding vessels under the Washington Treaty ofImitations in Tonnage, and 13 edviseprlyapceomunednts,atovesdaymneoatnhtitnhgaot fm.muocrkemecmonoamrmicoorp, geruantisoonrfoarmtmheuwnietiigohntfoinrvaolgvievden 14 in insulation. 15 Amosite pipe covering weighs about 14 pounds per cubicfoot, with a temperature limit of750 BF, as compared to magnesia with aweight of16 poundsper cubic ' 16 foot, and a temperature limit o f500 "F. High temperature amosite pipe covering weighs about 18 pounds per cubicfoot as compared to 26 pounds per cubicfootfor 17 other high temperature insulations. Because ofthe tower conductivity and the higher temperature limit of the amosite type, toss ofit need be used in a 18 combination covering than other types ofinsulations. 19 The development ofamositefelt started in 1934 when aneed existed to secure a 20 thermal insulation lighter in m ight and thermally moreefficient than the materials (blocks and cement or asbestos blankets) which were then bang used on 21 destroyer turbines. The Navy approved the type developed by a manufacturerin September, 1934. Originally amosite was used onlyfor turbine insulation, but it 22 proved so satisfactory Mat itsfield ofapplication enlarged to include insulation of vtdves,fittings,flanges, etc. From the initial destroyer, it has been used on almost 23 all the destroyers bunt since that time and on all other combatvessels built since, before the War. 24 Pipe covering was a nter development in late 1935 and early 1936. Due to the 25 manufacturing problems involved, it took a longer time to evolve into a 26 sitastiusfsaechtoarsyspshreaapde,menadrkietdslfyirasntdmitewoansmuasuedd ovenstsheelsgwreaastimn a1j9o3r7it.y Soifnncaevtahlactotmimbea,t 27 vessels built during World War IL 28 BR.YDO Hugo & Parker Stott Water-repellent amositefoli was developed during the early part o f1942, as a 8 I 10:06AM Ho. 9700 F. 9 1 replacementfar hairfait m the insulation ofcold water lines to prevent sweating. Hairfait had the disadvantage ofbeing combustible and as it was organic, when it 2 became wet it molded errrotted arid could harbor vermin. A t tins timefires on board certain m od vessels convinced She Navy ofthe desirability ofetiminating .3 any combustible materialfrom bn board ship. Eventually water-repellent amostte 4 wciarcsummafdereeinncestorifptsheopf5ip0efoaondt leenncgltohssedanind oanfseuxittarebmleewlyidlitghhtto-weneciglohstemthueslin to' 5 facilitate the handling and reduce the dust, vMch the water-repellent agent accentuated" 6 9. The United Slates Navy recognized th at the inhalation of asbestos fibers in 7 (dose =concentration x time) could result in pulmonary disease sine 8 at least tiie early 1920s and had an active program to identify hazardous exposures and 9 control recognized health effects, h i the "Instructions to Medical Officers" (Notes on 10 Preventive Mediansfor Medical Officers, Untied States Navy (Dublin, 1922) (Exhibit 9)), 11 asbestos was listed as one of the many inorganic and organic dusts that could cause .12 pulmonary disease when inhaled in a sufficient quantify for a significantperiod of time, 13 Dublin recognized several methods to prevent the inhalation of these dusts including; the 14 use of w ater to control the release of dust; the use of local exhaust systems to remove the 15 dust at the point of origin; the use of inclosing (sic) chambers; and the use of respirators 16 and helmets. He stated: "No one of these can apply to all conditions, but the particular 17 m ethod to be used must be adapted to the peculiarities of the process." From the 18 extensive list of inorganic, as well as organic, dusts arid "occupations which offer such 19 exposure," it is obvious that his perception of dust control was based upon the avoidance 20 of recognizable disease, and not the mere presence of a given, or visible, amount of dust 21 22 10, The United States Navy expanded the scope of its asbestos hazard control 23 program by including the enlisted corpsmen of the medical departm entin the hazard 24 control process. In the Handbook of the Hospital Corps. (Bureau of Medicine a n d ........ Surgery, 1939) (Exhibit 12), the Bureau of Medicine and Surgery discussed the organization used for disease and injury prevention in the United States Navy, and took a lead position in the prevention of industrial disease: 9 Miy. I 2008 t0:06AM No. 9700 P. 10 "The Government haems passed suck laws must therefore la d th ezm /m protecting its own employees ...A n organization has been set upm me Navy to protect its personnel, oom cwilian and novat A safety msfoieer is provided), who acts directly under the Assistant Secretary ofthe Navy. He has supervision ofthe safety precautions taken to protect the dm ian employees m the navy yards, ammunition depots, torpedo stations and the like. He is also a consultant inau ofthis organization. It is essential that earn one y these memoers mow m understand m hazards to he encountered m the Haw, the stops tope taken to protect against M ary and disease, the treatment ofmeases and mjunesmrstng therdrom and the organization ofmedical personnelfor such purposes. Naval medical personnel are required to perform duties ashore, at sea, m foreign countries, in the air and under the sea. In each ofthese places a variety qfnem _j- Ts. MB/uiPfliiMr4hnf fifia nBrznnnp} TnohP. mflTYWZwl Knowledge Oftne wmsvry w wnjcn mey re upuiwt^f we "a methods ofprevention and the treatment (fall injuries occurring. A t ad navy yards,, the Commandant is the head of the organization. He is responsible to the Navy Departmentfor the protection of ttyemptoyees, ai the naval personnel, under his command. He isfamhar with them ture c work bang performedby the employees at his station and die hadth and a hazards presented. Accordingly, he appoints, as the working organization, a safety officer ora safety engineer, as he is bettor known. Hie safety engineer must be ofsufficient rank to have becomefamiliar with the various trades in a navy yard, a knowledge ofmachinery, a man ofcooperative cuMityasiu wed Wad, and having sufficient knowledge <fsafety devices and appliances to ' int,eTllJi'g_enVtly. make inspections and recommbemnAd nprrompoerr pnrmoftvecrttimvef rmhPetaKsiumr>eHs, HlS dudes are primarily, to prevent accidents and promote healthy working conditions. It is his duty to inspect ad working places, maty ageneral sum of ad mechanical conditions and to recommend me addition ofallnecessary si appliancesfor the protection ofthe workers.. The Commandantfurther assigns a medical officer to ad as advisor to the safety engineer, The medical officermust be of the same qualifications as the safety engineer, with the addition that he must be thoroughly versed m the diseases connected with Industry....Hit is wellfin members of the Hospitcd Carps to understand the nature iffthese duties in order that they may be ofassistance^to him in the performance cfthese duties:: []...Heactsas consultant tome seffety engineer in ad matters periamng to the general welfare and h e m ofemployees. Hygiene and sanitation arehis important duties. He must interest himselfin the employees and instruct them in the every day principles ofVp^ffoJd hygjme end sd fpmrvdtioh. He rdust instruct the employees ifi safety Measures ana encourage them to cooperate in protective measures. They must be made safety conscious' or `safety minded.` The mare must bekept up.... The meiicd officer must inspectoil working places in order to have a btiter understanding .as to the actual conditions under which the men work. He must make appropriate recommendations to improve deficiencies noted and must then see that these recommendations are carried out" 10 7/ 10:06AM Mo. 9700 P. 11 l Hue text further notes that the safety engineer is assisted by other personnel; 2 "The stfety engineer iaassisted in his work by theforemen ofUteshops and in some instances by safety committees in each shop elected by the employees, These 3 men or committees are generally chosenfern among the older employees andfrom men who have considerable experience in their trade..,,11 The organmtion ofthe 4 medical advisor is composed ofjunior medical officers, dental officers, to some extent, members of the Hospital Corps, and ofnurses. The duties i f Hiehospital 5 corpsmen are to assist the medical officer in m inspections, assist in the treatment ofthe injured and to prepare the necessary reports and return incases 6 ofaccident, occupational disease, and the physical examination ofemployees." 7 A similar organization is described for "... a battleship or in otherplaces,'' ' 8 To this end, the enlisted Hospital Corpsmen were informed of the hazards $ presented by asbestos and instructed to 'locate these hazards and afford protection K accordingly," Two of duehazards that the hospital corpsmen ware specifically instructed 11 to evaluate in a questionnaire (inspection or survey form) are; . 11 "What precautions are exercised to prevent damagefrom pipe covering i: compounds?" l "What asbestos hazards exist?" l Also, the hospital cotpsman was instructed to help keep the workforce healthy: l "Properworking places must beprovided end maintained. Hygienic and sanitary conditions mum bekept on a high plane. All moving parts ofmachinery must be l guarded, goggles providedfor workers required to use them; helmets and masks for sand Masters; proper ventilationfor the chrome workers; masksfor asbestos . l workers; protectionfor workers in x-ray and radium; protective gloves,, shoes, and other garmentsforfoundry workers, and other means ofprotection too numerous l to mention here must beavailable and used, []Special physical examinations must be made ofdll sand blasters, asbestos handlers, those exposed to radium and 2 its compounds, lead workers, those engaged in dusty or smoky trades, handlers cf r T.N.T. and other explosives, etc., to prevent the occurrence of the diseases associated with those tradesfrom injuring tive men." r 11. H us type of active assessment, evaluation, and recommendation for control r was embraced by senior United States Navy officers. In his memorandum to the r Maoageroihe-Navy-YardrBc>ston,<;aptamHrErJeiddriSfMGrtJSN-0enlansrl939)-------- (Exhibit 13) discussed his findings and recom mendations from his survey of the pipe covering shop and work shack at that yard. Although he stated that flue health hazards to personnel were very remote, based upon his evaluation of the amount of dust released, Captain Jenkins recommended that a dust respirator and gloves be worn to 11 7. 10:07AM Mo. 9700 P. 12 1 ipplement the "conscientiously and intelligently enforced" practice of wetting down 2 isulaiing m aterial Captain Jenkins also addressed the impractical use of respirators 3 firing shipboard lagging operations and recommended sufficient wetting to prevent 4 ust generation as for as practicable. Less than one week later, C,D. Headlee (1939) 5 Exhibit 14), issued a Production Division Notice (Number 996) implementing these 6 7 12. Captain E.W. Brown, in the Annual Report ofthe Surgeon General, U.S. Navy 8 i the Secretary ofthe Navy (Surgeon G eneral U.S. Navy, 1941) (Exhibit 15) and in the 9 rfpntifir publication of his presentation made to the Fifth Annual Meeting of the Air 10 iygiene Foundation of America (Brown, 1940, printed 1941) (Exhibit 16), discussed the 11 indings of his medical survey at the New York Navy Yard. Captain Brown, recognized 12 is the founder of the N avy's formal occupational health program, assessed asbestos 12 ixposure and medical findings of eleven workers a t the New York Navy Yard. With 1' knowledge of occupational exposure to silica and its delayed medical findings, and under 1J he conditions that he observed. Captain Brown found no indication of pulmonary li disease in these workers at that time. He noted that w et methods and local exhaust' 1' ventilation were implemented, and that the workers wore a respirator "'during the li dustiest aspect of the process." He stated that similar findings were reported in two 1 other yards and recommended that the study be extended to all men in this trade. These 2 references further demonstrate that senior Navy personnel actively monitored and 1 2 controlled the Navy policy regarding disease and injury prevention, and were indeed the 2 leaders in field assessment and control of occupational health hazards, including 2 asbestos. 2 13. When quantitative assessment (counting) of asbestos particles in air was available, the Navy followed the recommendations of the United States PubEc Health Service. Basedupon the findings ofDreessen and coworkers' 1938 study (Exhibit 17) of asbestosis in the textile industry prepared by direction of the United States Surgeon General, the United States Navy accepted ah exposure level of 5 million particles per 12 I 1fl:0?AM No. 9700 f. 13 1 cubic foot (5 MPPCF) as the rime-weighted average (TWA) for occupational exposure. 2 Dreessen et aL concluded; 'I t would seem that if the dust concentration in asbestos 3 factories was kept below 5 million particles (the engineering section of this report has 4 shown hew this may be accomplished), netw cases of asbesfcosis would probably not 5 appear." This TWA is the average airborne concentration of asbestos particles to which 6 an individual could be exposed in an eight hour period. Shorter periods of higher 7 concentrations were acceptable as long as the average exposure calculated over eigh t S hours did not exceed die TWA. . 9 14. A 1941 memorandum from, the Officer-in-Charge of the Navy's Division of 10 Preventive Medicine to the Surgeon General (Stephenson, 1941; Exhibit 18) addressed the 11 policy of inviting the Bureau ofLabor Standards or the United States Public Health 12 Service into the Navy yards for the purpose of surveying welding and other hazards. 13 Commander Stephenson writes; 14 "1toldMr. Bard [Assistant Secretary ofthe Navy] that this toas not considered the best policy, due to thefact that we fiad median officers in the Yards id that 15 in practically all instances recommendations ofsound character hod-been made by mediad officers. We saw no need ofinviting me United States Public Health 16 Service on iis own invitation to do tins mb. Likewise, I told him thdtl had spoken toyou and thatyou hid indicated that PresidentRoosevelt thought that ihis 17 might not be the bestpolicy, due to thefact that they might sense disturbance in the labor dement" 18 Under "Points ofgreat interest," Commander Stephenson expressed concern about 19 silicosis, sand blasting, welding, solvents, hydrogenated (sic) hydrocarbons, eye flashes, 20 cadmium dust, smokes and fumes, chromium trioxide, and asbestosis. With respect to 21 asbestos, he stated: 22 23 24 is a matter ofofficial reportfrom several ofour Navy Yards.' 15, As mentioned by Captains Jenkins and Brown, they found asbestos exposure conditions that w ere n o t fully satisfactory and required changes. Recommendations for correction of the exposure conditions were made. In both of these instances, only a qualitative assessmentwas m ade and actual exposure levels were not 13 May. 7. 2008 10:07AM Ho. 9700 P. 14 . 1 determined. Brown (1941; Exhibit 16) found no significant clinical findings in the limited 2 num ber of workers observed during die relatively short, post-exposure period. The 3 Navy's occupationalhealth program w as based upon internal support for the 4 identification and control of occupational health hazards. In order to develop a sufficient 5 cadre of physicians and scientists, the Navy developed training programs w ith Columbia 6 University's DeLamar Institute of Public H ealth and the Harvard School of Public Health. 7 By the end of W orld War U, over one hundred physicians, scientists, and engineers had 8 been trained in occupational health at these two leading institutions of US public health. 9 16. The Minimum Requirementsfor Safety and Health in Contract Shipyards 10 (United States N avy Department and United States Maritime Commission, 1943; Exhibit . 11 19) were drafted in 1942 by representatives from labor management committees, labor 12 unions, management of private shipyards, insurance companies, the United States 13 Maritime Commission, and the United States Navy. When approved by the US Maritime 14 Commission and the U.S. Navy in early 1943, compliance w ith these standards was 15 expected: 16 17 18 19 20 21 22 "Each contractor is herebygiven notice that the Navy Department and the Maritime Commission mm expectfu ll and complete compliance with the . minimum standards which hear me approval ofthe Hem Department and Maritime Commission, and each is requested togivejm cooperation to the. consultants on health and safety who will be chargedwith the coordination and supervision ofthe safety ana health program ofthe two agendas. H-13. A Guidefor Prevention ofIndustrial Disease in Shipyards 13.1 Eight common types ofdisease and methodsfor their prevention ere given in the M owing sections. Help in applying these methods will begiven by the local Safety Department and by safety and medical consultants of the Navy Department and the Maritime Commission. 23 24 13.7 Asbestosts 25 a. Sources: In general, anyjob in which asbestos dust is breathed. For example: 26 27 28 BfcYDOK Hugo* Parker IMMMPSTHBffr fob: Handling When Material Is: Asbestos 14 7. 10:07AM No. 9700 P. 15 l SatefHg 2 Cutting Asbestos mixtures 3 Molding 4 Welding rod salvage 5 6 7 8 9 b. Job cm bedone safely with- 10 2. Segregation i f dusty work and, 11 2,, (<i) Special ventilation: hood enclosing the working process and having linear an-velocities at all openings ( f 200feet per minute, or .. 12 (b)Wearing ofspecial respirators. .19 1A 3. Periodic medical examination" li Less than six months after die Minimum Requirements were issued, the Secretary of the Navy (Forrestal, 1943 (Exhibit 20)) reaffirmed these requirements for all private i: shipyards having Navy contracts. The minimum requirements did not provide a specific 1! occupational exposure value for asbestos. They gave general requirements for safe 1 (healthful) operations. The Navy's occupational health team was responsible for 21 assisting in interpreting the standards for implementation at Navy and contract yards 2 .throughout the country. Any significant inspection findings, whether favorable or 2: adverse, were to be discussed first w ith the shipyard management, thus allowing 2: management the opportunity to take corrective action for imminent dangers. The actual 2; writtenxeport-was to be submitted in draftform to the regional direcfor.of theM aritim e.. _ 2 Commission for final typing. . 2 17. In addressing exposure to asbestos, Philip Drinker, then Chief Health 2 Consultant for the United S tate Maritime Commission, and Professor in the Harvard 15 May. 7. 2008 10:07AM No. 9700 P. 16 1 | School of Public Health program that was training the Navy physicians, scientists, and 2 ! engineers, recommended an occupational exposure level of 5 MPPCF. (Drinker, 1944 3 | (Exhibit 21)). This is the same value as recommended by Dreessen and coworkers (1938) 4 | (Exhibit 17) to prevent the development of asbestosis. 5 l 18, In January, 1945, Philip Drinker (1945) (Exhibit 22) informed Captain T. J. 6 11 Carter, Bureau of Medicine and Surgery, of a serious health risk from asbestos dust 7 |1 exposure at Bath Iron Works. He was concerned that similar risks m ight be found in 8 11 other yards where the same type of pipe covering w as used; In this letter, Professor 9 || Drinker stated that the manufacturers of the asbestos materials used at Bath would: 10 II "...be glad to get out abridstatement ofprecautions which should be M en in 11 II tight t f their own experience and that they would inform their competitors m t.I W ashed them to do so. I understand that neither the Navy norM m tm z wants 12 II am change in the specifications as the performance wit thevresent materials is entirety Msfactorv. From a health standpoint we do not believe any specification 13 changes are needed." 14 Drinker recommended that a study be performed to evaluate asbestos exposure 15 and disease among workers. nAdmiral Mills agreed that such studies would be wise 16 before Navy or Maritime acceptai this asbestosis risk as bang significant in our general 17 ships construction program." Pour shipyards in the New York area, two contract and 18 two US. Navy yards, were selected for this study of exposure levels and health status. 19 The study, conducted by Fleischer, Viles, Gade, and Drinker-also called the ^Fleischer- 20 D rinker study"-was prom ptly undertaken and reported in September, 1945 by Drinker to 2221 Admiral Mills (Chief, BuSHIPS) (Drinker, 1945b: Exhibit 23); (Fleischer et aL, 1946; Exhibit 5). The results of this study reaffirmed the Navy's position on adherence to an 23 occupational exposure level of 5 MPPCF, The conclusions were: 24 "1 Th character ofasbestos pipe covering on bow'd ruml vessels'is such that 25 conclusions drawnfrom other asbestos industries such asitiextiks, amotbe 26 27 28 BR.VDON Hirao&PARKEa 2. The operations ofband,sour cutting, grinding, cement mixing, and installation aboardsnip should be equipped with exhaust ventilation to keep the total dust concentration low. 16 7. 10:07AM I Ho. 9700 P. 17 l 3. The incidence tfasbestosis man, coverers in iheshipyards studied was Ura/r 0,29 per cent or 3 arses out3 f 2 4. Since eachofthe 3 cases ofasbestosis hud worked at asbestospipe covering in 3 shipyardsfor more ihm 20 years, it may he concluded that stick pipe covering is not a dangerous trade. 4 19. The results of this well-designed study, measuring actual asbestos exposure 5 dues and performing health assessments on the exposed workers, became established 6 i Navy policy. The Navy adopted a recommended "maximum allowable concentration 7 A .A X Lf vedue for asbestos of 5 MPPCF. This was the same value discussed by 8 le s s e n and coworkers (1938) (Exhibit 17) when, assessing the asbestos textile industry 9 rith much longer daily exposure periods and prim arily the chiysotile type of asbestos. It 1C ras also the value recommended by the National Conference of Governmental Industrial 11 lygienists in 1942, and later adopted by the American Conference of Governmental 11 rtthisfrial Hygienists (ACGIH) in 1946 (ACGIH, 1946 (Exhibit 24)). Among the members 1`I: >fthe ACGIH in 1946, a private organization which did not offer membership to individuals affiliated w ith industry, were three representatives of the Navy Department i: and forty-two representatives from die United States Public H ealth Service. There were 1 to federal, state, or local occupational exposure standards. The Navy used Ihe l occupational exposure level that the best scientific and medical evidence supported, fit l 1955, the Navy adopted the "Threshold limit values for toxic m aterials" promulgated by i the American Conference of Governmental Industrial Hygienists as a basic reference and 2 "to provide guidance toward the reduction of potential health hazards encountered in 2 the industrial environment for both military and naval civilian personnel." (Chief. 2 Bureau of Medicine and Surgery, 1955? Exhibit 25) The Navy recognized that thei . * "threshold limit values should be used as a guide in die control ofhealth hazards and should not be regarded as fine lines between safe and dansterous * t i Moreover, the Navy recognized that the: < "threshold limit values... are based on the best available toxicological information, 17 May. 7. 2006 10:fl7AM No. 9700 18 1 long-term industrial experience, and experimental studies. In as much, as these values are constantly being reevaluated, revisions oradditions will be made as 2 further information becomes avaMable." 3 (Chief, BUMED, 1955 (Exhibit 25)0 4 20. On January 7,1958, the Department of die Navy issued its Safety Handbook 5 for Pipefitters (Bureau of Ordnance, 1958) (Exhibit 26). H us handbook was one of many 6 safety handbooks issued by the Navy as an aid in safety indoctrination and accident 7 prevention This handbook provides, in p a rt . 8 "Asbestos. Asbestos dust is injurious ifmkakcL Wear an approved dust 9 respiratorfor protection against this hazard." . 10 21. In the 1960 publication of Safety and Health Regulationsfor ShipRepairing, the 11 Department of Labor (Exhibit 27) recommended an occupational exposure level of 5 . 12 MPPCF for asbestos. For comparison to the degree of risk and hazard, the Department of 13 Labor also used the occupational exposure level of 5 MPPCP as the same absolute value 14 for high "free" crystalline silica dust (greater than 50% free silica). The silica value is also 15 the same value established by the ACGIH in 1942 and prom ulgated in 1946. 16 22. The use of the 5 MPPCF level as the occupational exposure value continued 17 to be generally acceded by professionals practicing occupational health in the United 18 States. This value was based upon controlling the development of the fibrotic disease, 19 asbestosis. This occupational exposure value, and the widespread use of asbestos, 20 continued in the Navy until the late 1960s when the scientific and medical communities 21 {Selikoff, 1965 (Exhibit 28) and Selikoff, 1967, (Exhibit 29)) and the United States Navy ' 22 (Commander NAVSEC, 1969 (Exhibit 30) and Officer-in-Charge NAVSEC Philadelphia, 23 1969 (Exhibit 31)) had evidence that it was not sufficient to adequately control the health 24 effects ofexposure. ................. 25 23. Selikoff, in a paper w ritten w ith Lee in 1979 (Lee and Selikoff. 1979 (Exhibit 26 32))wrote; 27 `"What's past is prologue!' The decade ofthe 1960s provides a convenient%time at 28 width to terminate ahistorical mew ofasbestos disease. With admirable hindsight HugBoR&YDPCaNrker 18 (< 10:07AM Ho. 9700 P. 19 1 from the late l$7Qs m ean see that the essential evidence had already hem reported, but notyel assembled orvested with sufficient credibility to be entirely 2 convincing. Withfew exceptions, the evidence at that time rested on scattered reports ofsmall numbers ofcases, and the cases themselves sufferedfrom being 3 eaher selected or simply those that happened to com to the attention of the reporter. The population basefrom which the cases cam was seldom mentioned. 4 The significance ofpleural changes and the occurrence ofmesofheliomin persons without a distinct history ofexposure remained in considerable doubt The idea 5 that asbestos could be at least a cofiador in tite production c fbronchogenic carcinomat m farfrom fully accepted. That parenchymal asbestos was very <5 likely to occur in those who hid been exposed to heavy dosage in the early years iff fits industry was clear enough, but what effect environmental controls that had 7 been introduced in the late 1930s might have upon its future providencewas unknown. The possibility that quitehw dosages might have grave consequences 8 SOor more years afterfirst exposure was still unproven. 9 10 Many things were needed to confirm the suggestions that were emergingfrom the U studies up to that tim . Most importantly, systematic epidemiologic investigation m s needed oflarge cohorts drawnfrom various types of industry, With the 12 inclusion ofadequate amtrolpopuMwns. Some ofthese were already organized, but it was too earlyfor the results to be meaningful We now know mat muck of 13 the negative evidence stemmedfrom arming to conclusionsprematurely, before the slow processes ofcarcinogenesis had had a chance to make themselves evident 14 We now knowalso that reduction f f heavy exposures that lead ft?early death would reveal such slowly developing diseases as mesothelioma and bronchogenic 15 carcinoma with increasmg clarity. Butforeknowledge was not availableat me time, although some investigators suspected that the auguries were notgood. 16 More sophisticated and sensitive ways ofrecognizing the diseaseprocesses at an early stage, before the appearance o fmarked radiographic changes, were badly 17 needed. A series f f international conferences, some already in theplanning stages, were to accelerate these developments greatly. Those whofrit that it was 1 an exciting time were not to be disappointed. The excitement has not even yet been entirely dissipated.'' . 1 24 Captain N.E, Rosenwlnkd, representing the Navy's Bureau of Medicine 2( and Surgery, provided information regarding the Navy's knowledge of asbestos hazards 2) to shipyard employees for inclusion in a statement issued by Rear Admiral JJ. Stihvell of 22 the Shipyard Management Directorate, Naval Sea Systems Command in 1968 22 (Rosenwihkfil, 1968 (Exhibit 33)); 2' X Untied States. Stringent efforts are directed at keeping the concentration of airborne asbestos dust below the level recommended by the American Conference ofGovernmental Industrial Hygienists. An energeticperiodicphysical examination program insures me health f f personnel exposed to this hazard.'' 19 10:08AM No. 9700 P. 20 r 25. During the period of the late 1960s/ asbestos exposure and control were 2 >eing addressed at differentlevels of command throughout the Navy. The Naval Ship 3. Engineering Center was searching for substitutes that could m eet the rigorous 4 engineering requirements for shipboard applications (NAV5EC, 1969 (Exhibit 30)). A 5 neeting between senior engineering, safety, and medical personnel was held to evaluate 6 possible methods for reducing exposure and to make recommendations to the Chief of 7 Naval Operations (Tumbull, 1969 (Exhibit 34)). MajorNavy shipyards were sharing their . E research on asbestos exposure and control measures (Mangold, 1970 (Exhibit 10)). 9 26. It w as not until 1970, that the Occupational Safety and Health Act (PL 91 10 596) (Exhibit 2) established national permissible exposure levels (PEL) for the first time 11 using the federal standard established under the Walsh-Healey Public Contracts A ct 12 These standards applied to shipyards, as well as other industries using asbestos. At the 13 time of enactment in 1971, the PEL for asbestos was 12 fibers per cubic centimeter (f/cc). 14 Eased upon, current scientific and medical recommendations by that time, the 15 Occupational Safety and H ealth Administration (OSHA) emergently lowered the PEL to 16 5 f/cc (ceiling value of 10 f/cc) in 1971, w ith a perm anent standard of 2 f/cc becoming 17 effective in 1976. In 1975, OSHA recognized sufficient medical and scientific evidence of 18 hum an carcinogenicity to reduce the permissible exposure level to 0.2 f/cc. After legal 19 challenges, OSHA reduced the PEL to 0,2 ffcc in 1986, and further reduced it to its current 2( value of 0.1 f/cc in 1994. Requirements from the highest levels of authority in the United 21 States Navy established the permissible exposure levels as they changed during this post- 25 OSHA era (Naval Ship Systems Command (NAVSH1PS), 1971 (Exhibit 35); Bureau of 2] Medicine and Surgery (BUMED), 1973 (Exhibit 36); and Chief of Naval Operations (CNO), 1974 (Exhibit 37)). . 27. The Navy has continued to follow the policy of using occupational exposure levels based upon the best available scientific and medical information (BUMED, 1955 (Exhibit25)). The federal PELs, established by the Occupational Safety and Heath Act of 1970, are generally based upon the American Conference of 20 7. Ko. 9700 P. 21 1 Governmental Industrial Hygienists' Threshold Limit Values (TLVs) published m 1968. 2 Due to statutory requirements, changes to the lim ited num ber of chemical PELs have 3 generally b eer slow. FELs have been changed for a relatively few chemicals since the . 4 enactment of OSHA in 1970. The TLVs are periodically reviewed and an updated list is 5 published annually. The TLVs more dosely reflect the current state of knowledge and 6 professional practice in occupational health. The Navy continues to use the most 7 appropriate occupational exposure levels in the assessment of exposures and follows the 8 requirem ents stated in the Chief of Naval Operations Instruction OPNAVIN5T 5100.23 ? 9 (Chief of Naval Operations, 2002) (Exhibit 38) to provide workplaces that reflect the state- 10 of-the-art knowledge and technology, consistent with its defined mission: 11 "The maintenance ofa safe and healthful workplace is a responsibility of commands throughout the Navy. A successful Navy Occupational Safety and 12 Health. (NAVOSH) program, one that truly reduces work-related risks and mishaps, results only when support and commitment to the prqgrmpermeate 13 every level ofan organization. Within the Navy, the ChiefofNaval Operations (CNO) has ooerdti. responsibilityfor the NAVOSH program and implements the 14 program through the chain ofcommand. Line management is responsiblefor die 15 mamtemnce ofsafe and healthful working conditions." 28. The Navy*s Safety Program was driven from the highest level of authority 16 and operational command. The "United States Navy Safety Precautions," OPNAV 34P1, 17 was signed outby the Acting-Secretary of the Navy, C S. Thomas, on 8 June 1953 (Exhibit 18 39). In his "charge" w ritten in this in stru c tio n , M r. Thomas states: . 19 "The safety ofits personnel and the preservation ofits materials have always been 20 a major concern of the Navy Department. Evidence of this is the provision in Article 0406 of U.S. Navy Regulations, that "Each Navel TechnicalAssistant 21 shall prepare and issue to the Naval Establishment the safety precautions, and 22 instructions pertaining thereto, which are necessary or appropriate in connection with matters under his technical direction." 23 + * * 24 "fits ,, / the burden ofresponsibility which a commanding officer hasfor tfhft&?peiisSwiel aria '77taterial tinder hts CdfiMand, a g&oefrdngtittide', 01_10_4 Bam ' 25 Rule ^Responsibility, has been included to atiowfor adjustments to local 26 conditions and unusual circumstances. The complete text ofthis article not only appears in Chapter 1, but is reprinted on the tide page cf each chapter ofthe book." 27 The "Basic Rule of Responsibility" states: 28 21 7. 10:08AM No. 9700 P. 22 1 "Safety is amrmrntdfuncrion. Responsibilityfor the safety cfpersonnel is vested in the ammummng officer. Because these safety precautions apply only to 2 usual conditions, commanding officers or others in authority may find it necessary to issue specialprecautions to their commands to cover had conditions 3 andunusual circumstances. In addition to theposting ofappropriate precautions, careful instruction and indoctrination ofau personnel are necessary 4 . to ensure effective compliance with these precautions." 5 6 rganizationally distinct, and geographically distant naval activities, the Bureau of 7 iledidne and Surgery instituted the quarterly publishing of Occupational Health 8 Reports: Occupational Health H azards during World War IL These reports were initially 9 eceived by the Bureau of Medicine and Surgery from all field commands staffed w ith 10 iccupational health professionals, condensed, and redistributed to all the submitting - U :ommands. (BUMED1955 (Exhibit 40), 1959 (Exhibit 41), 1961a (Exhibit 42), and 1961b 12 Exhibit 43).) Later, the Navy Environmental Health Center contmued this function until 13 he late 1990s when electronic information sharing made the process obsolete. These 14 15 nform ation and services between commands was common early in W orld War IL . 16 29. Based on m y education, training, and experience, it is my professional 17 opinion that the Navy was w ell aware of the health hazards associated with the use of 18 isbestos from the early 1920a. The Navy's decision to use asbestos materials was based 19 upon naval operating requirem ents and missions in light of the known health hazards at 20 various periods in time. The N avy had a longstanding and notable occupational safety 21 and health program that addressed asbestos and other health hazards, and that provided 22 exposure control recommendations and methods that were consistent with the state-of- 23 the-art knowledge in science and medicine. The Navy operated under the premise that 24 control of asbestos exposure could essentially eliminate the hazard of a material considered essential for sustained Navy operations! Using established scientific and medical knowledge, She Navy developed an active program to control the release of asbestos fibers in dusty operations, as well as to monitor the health of workers at risk. The landmark study of Pleischer-Drinker, reported in 1946 (Exhibit 5), confirmed the 22 7. 2008 10:08AM o. 9700 P. 23 1 general thoughtthat exposures in the Navy to asbestos containing m aterials could be 2 controlled and health effects could be limited by medical surveillance. Navy industrial 3 program s were directed at controlling what was considered significant releases of du st 4 During the period from about 1938 through die later 1960s, ihe w idely accepted 5 occupational exposure lim it was 5 MFPCF. In the mid-to-late 1960s, the Navy led die 6 w ay is assessing asbestos exposure of personnel and developing a program and process 7 to eliminate the m aterial based -upon new scientific and medical information that was 8 becoming available. - . 9 30. The information possessed by the Navy, with respect to the specification 10 and use of asbestos, and the health hazards associated with its use aboard Navy vessels, 11 far exceeded any information that possibly could have been, provided by a boiler and 12 auxiliary equipment m anufacturer. The boiler and auxiliary equipm ent manufacturer 13 has absolutely no responsibility or control over the workplace or personnel - both . 14 essential aspects of hazard communication. Based upon the knowledge at the time, the 15 Navy was fully aware of the health hazards of asbestos and had a program to control 16 exposure of personnel and m onitor their health, since before W orld W ar II. The 17 knowledge of the hazards created by the use of asbestos containing matei-foic was 18 weighed with respect to the benefits provided by its use. 2019 31. The Navy controlled asbestos exposure consistentw ith the then current state of accepted scientific and m edical knowledge balanced by needs for national 21 defense. Sailors did not have the option to avoid all exposure to asbestos-containing 22 products or environments in which asbestos w as used while cm active duty. 23 32. The Navy's knowledge regarding the applications of asbestos and the 24 health effects represented the state of the art. During the period from the early 1920s to 25 the late 1960s, there was nothing about foe hazards associated w ith the use of asbestos 26 containing products used on o r in boilers and auxiliary equipment on United States Navy, 27 ships known by a boiler manufacturer, Hke Foster Wheeler, that was not known by the 28 U nited States government and the United States Navy. 23 7. 10:08AM No. 9700 P. 24 1 33. A further question has been asked of m e as to whether Navy specifications 2 such as MIL-M-15071D (Department of the Navy, 1961) (Exhibit 3) or Navy instructions 3 such as SECNAV Instruction 5100.8 ("Uniform Labeling Program - Navy,"2 4 September 4 1956) (Secretary of the Navy, 1956) (Exhibit 4) support the notion that manufacturers of 5 equipment such as Navy boilers and auxiliary equipment were free to provide their own 6 additional warning information about hazards associated with asbestos-containing 7 products that they did not manufacture. $ 34. Based upon review of these documents, many other documents regarding ? the N avy's hazard communication program, my career experiences as an Industrial HO Hygiene Officer and physician in the Navy dating back to 1972, and personal knowledge II of ihe N avy's hazard communication program and Naval practices generally, 1can state 12 as follows: 13 a. Uniformity and standardization of any communication, and 14 ionfpthaertNicauvlayr. sTahfeetyNianvfoyrsmimatpiolyn,caorueldcrnuoctiaolpteortahtee uopvearraiotiuosn 15 personnel w ere trained differently, and additionally received inconsistent information from dinerent manufacturers. In 16 fact, SECNAV Instruction.5100.8, Para.1 (Secretary of die Navy, 1956; Exhibit 4) states: "the purpose ofthis Instruction is 17 to standardize labelingrecpiirementsfor hazardous chemical products duringusage...' 18 b. SECNAV Instruction 5100.8 doe9 not apply to a Navy boiler 19 as it is not a chemical. It is a piece of mechanical equipment. 20 c. SECNAV Instruction 5100.8 is n o t addressed to 21 m anufacturers (please see "SCOPE" on page one of this . instruction), bu t rather it directs internal Navy "ACTION" as 22 sInpsetcriuficctaiollnyswarreittceonmomn panadgsef2roomf ththiseiSnesctrruectatiroyno.fSthEeCNNaAvVy 23 directing N avy personnel on the m anner in which to carry out their obligations. Requirements for manufacturers 24 seeking to be compensated for m aterials supplied to the Navy are covered in military specifications, not SECNAV instructions.- . - 25 26 d. SECNAV 5100.8 did applyto hazardous m aterials a9 discussed uniter the "BACKGROUND" for prom ulgation of 27 fids instruction on page 2, and, in fact did contemplate that labels affixed by the m anufacturer of the m aterialpursuant 28 to state, federal, and other guidelines (such as MSDSs 24 W C T T A T> Trrui r /Nr t a 7. 10:08AM No, 9700 P. 25 1 published by fee Manufacturing Chemists' Association} would be part of die Navy's hazard communication 2 program (see, Para. 2(a)). In fact, asbestos insolation 3, timer beginning m ore than two decades earlier, die Navy's 4 own occupational health program provided training, engineering and administrative controls, personal protective 5 equipm ent and medical surveillance to prevent the hazards of asbestos. 6 7 e. Any additional warning about the hazards of asbestos by an equipment manufacturerw ould be only partialin scope as . E 6 well as inherently redundant; eventually obsolete, and ssibly incoriastent w ith the Navy's own.training. In d ie 9 incaotnosfibstaetntlteh, athzaerrde ilsabsiemlsp. ly no time to be interpreting 10. t At best, an equipmentmanufacturer such as Foster Wheeler, H which delivered equipment to Navy specifications could merely have told personnelto follow trie N avy's own 12 mandates for handling asbestos. This redundant information is not informative, diverts attention from 13 hazards inherent in die equipment, and would certainly become obsolete. Boilers last many years and die Navy's 14 asbestos hazard communication program has evolved over the years to keepjpace w ith scientific developments and 15 changes in m aterials. 16 g. If every equipment manufacturer (and conceivably even the 17 pipe and structural steel manufacturers) provided its own warning about asbestos insulation that m ight be used on or IS aroundlts product, inconsistent warnings would certainly have resulted. And, keep in m ind many other hazardous 19 substances (e.g, boiler feed w ater chemicals, fuels, solvents, heavy metals) are used in conjunction w ith the m ultitudes of 20 equipment on a ship. If each was to w arn about all the posable substances that m ightbe used on or around its 21 equipment; sailors w ould quickly become inundated with inconsistent information on a myriad of substances. 22 h. Some types Ofinsulation used by the Navy on equipment 23 were non-asbestos (e.g., fiberglass blankets) and any warning about asbestos on such equipm ent would simply be 24 wrong. . i. MELSPEC-M-15071D, Para. 3.3.1 (Department of the Navy, 1961; Exhibit 3) makes clear that equipment manufacturers' manuals m ust first be approved by the Bureau of S lips and the "manual shall not be m odified w ithout approval of the Bureau of Ships " M oreover, it cautions: "Notes, cautions, and warnings shorn, be used to emphasize important critical instructions. The use should be as sparing as is consistent with 25 nnnr ih> 08 10:08AM N. 9700 P. 26 1 TeaIneed." This specification applied to risks inherent in the operation of fee equipment (as distinguished from repair 2 and/or overhaul). Gratuitous warnings about the possible use of materials made by others do n o t comport m th this 3 Specification. Any Suggestion that Foster Wheeler was free to depart from Navy-approved manuals is incorrect. 4 5 , 35. Lastly, b ut importantly, Poster Wheeler, as a manufacturer of boilers and 6 auxiliary equipment, was not a subject m atter expert regarding the health effects or 7 industrial hygiene controls associatedw ith the use of asbestos-containing materials in 8 naval applications. I t is unreasonable to assume that the Navy would have accepted 9 "helpful comments" from a vendor or equipment m anufacturer who was n o ta subject 10 m atter expert. The Navy had this specific knowledge and more. The Navy had a robust 11 and encompassing occupational health program th at far exceeded just the m ere labeling 12 of a material. This program included aspects appropriate for fee degree of recognized 13 hazard at various times, including training, engineering controls, medical examinations, 14 provision of personal protective equipment, and use of alternative products when 15 possible. 16 36. Therefore, I conclude: 17 a. The information possessed by the Navy w ith respect to fee 18 sapsseoccifiiactaetdiowniafneditsusueseosfaabsboeasrtdosN, aavnyd vfeeessheelsa,lrthephraezsaenrdtesd 19 pthoesssitbaltye-coof-utlhdeh-aarvteanbdeefnarperoxcveideeddedbaynaybinofiloerrmmaatinounfathcatutrer, 20 lgikiveeFnopseteriroWd ihneetilmere, ,BthaeseNdauvpyown athsefusltlayteawofakrneoowf tlheedge a t a 21 recognized health hazards of asbestos and had a robust jjropam to control exposure of personnel and monitor their 22 23 b. There was no information concerning any asbestos hazards, or dangers posed by any asbestos-containing materials used 24 in boiler aha auxiliary equipm entsupplied under Navy m aterial specifications on aTJidted'States-Nayy ship feat was known to a boiler and auxiliary equipment manufacturer, like Foster Wheeler, that was not known to the United States government and fee United States Navy. - e. It w ould be unreasonable to assume that fee Navy would have accepted gratuitous, "non-expert" commente from equipment manufacturers and vendors about hazards . 26 TrorT A D A T i n n i A r T w 7. 10:09AM Ho. 9700 P, 27 1 associated with products they did n o tm ak e-an d especially 2 fmoirlcohnemaobroeuktnwowidltehdgtheeaNblaevthyawnatshaelmreaanduyffaucltluyrearwoarre and vendor. . 3 4 I declare under penalty of pequry under the laws of the United States of America 5 that the,foregoing fads are true and correct Executed this _ t h day of February, 2008. 6 7 8 9 10 11 -12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sr R 27 n u n r A V? A T r m T t