Document N2XJE84x3X5wOQeg4B9RjmwnD

m December 31, 1984 A1A/NA AND BCTD SUBMIT COMMENTS To OSHA On Asbestos Standard For Construction Industry By separate letters dated Dec. 17 and Dec. 11 respectively the Asbestos Information Association/North America (AIA/NA) and the Building and Construction Trades Department (AFL-CIO) submitted comments to the Occupational Safety and Health Administration (OSHA) pertaining to an asbestos standard for the construction industry. Both organizations emphasized that there are a number of important propositions which are fully supported by the primary interested parties, and that these propositions were endorsed during the public .A hearing conducted last summer by OSHA on a proposed asbestos'! standard. AIA/NA identified the following propositions where there ap pears to be no disagreement: . The unique nature of the construction industry merits a separate standard that will in some ways vary from the general industry standard. . OSHA should issue such a separate construction standard as expeditiously as possible consis tent with the constraints posed by legal re quirements for fair notice to all interested parties. . The low exposure typically encountered in in stallation of new products when appropriate work practices are employed support a regula tion that requires minimal, if any, ancillary requirements when such work practices are man dated and implemented. . For certain major removal, renovation and dem olition jobs, the potential for high exposures over extended duration requires OSHA to mandate a more comprehensive set of requirements to assure such activities are well controlled. OSHA was urged to move expeditiously in resolving the need for separate regulation of the construction industry. ASBESTOS INFORMATION ASSOCIATION 1745 Jefferson Oavis Highway, Crystal Square 4. Suite 509 Arlington. Virginia 22202 (703) 979-1150 CAP CO JEN 0012806 Page 2 f EPA Responds To NRDC Asbestos Brake Petition In the Federal Register of Dec. 19, the Environmental Protec tion Agency (EPA) responded to the petition filed under sec tion 21 of the Toxic Substances Control Act (TSCA) by the Natural Resources Defense Council (NRDC) to ban the use of asbestos in automobile and truck brakes (N&N, Nov.). While not granting a ban as requested by NRDC, EPA's response ini tiates a proceeding to address the risks which may be posed by this use of asbestos. To respond to the NRDC petition, EPA conducted a review of information pertaining to the use of asbestos in' brakes. The Federal Register notice presents a summary of the Agency's review, focusing on the risks posed by the use of asbestos in brakes, and on the availability of substitutes. EPA estimates that about 2,750 people are potentially exposech to asbestos during primary manufacturing of brake friction materials, and that about 550,000 people are potentially ex- ` posed to asbestos during servicing and repair of vehicle brakes. EPA also noted it has evidence that motor vehicle braking most likely contributes between 0.23 to 1.3 percent of the concentration of asbestos in the ambient air. The conclusion is then drawn that, "Both general population and workplace exposures to asbestos fibers from its use in brakes may result in an increased number of asbestos-related ill nesses, including cancer." EPA's response then discusses the availability of substitutes for asbestos in brakes, addressing substitutes for heavy vehicle brake blocks, light and medium vehicle drum brake linings, heavy vehicle disc brake pads, and light and medium vehicle disc brake pads, in turn. Concerning heavy vehicle brake blocks, braking components that are riveted or bolted to the insides of brake shoes to provide protection against the heat and wear caused by braking, the response notes that both semimetallic and aramid fiber pro ducts are available. However, semimetallic blocks are con sidered to be inferior to asbestos ones in resisting wear, minimizing brake fade, and in their erratic performance at different temperatures. Aramid fiber products are more ex pensive, and there is not sufficient evidence to determine whether aramid fiber products will be as effective as asbes tos. Semimetallic and aramid fiber products are also available as substitutes for asbestos drum brake linings, but the response notes that the semimetallics tend to perform erratically at different temperatures, fade, and produce more noise than as bestos-based linings. Concerning aramid fiber n*,nflnr.ts. EPA's CAP CO JEN 0012807 Page 3 evidence indicates that, besides being more expensive, their large volume production may require substantial retooling by brake manufacturers, and therefore they may not be available in substantial quantities for several years. For heavy vehicle disc brake pads, semimetallic substitutes are available for asbestos. The semimetallics are not con sidered to be good general replacements for asbestos disc brake pads in heavy vehicles because semimetallics perform better than asbestos only in hostile, high-friction, highheat environments. For light and medium vehicle disc brake pads, semimetallics cannot substitute for asbestos in every application because of inferior performance characteristics. The response states that EPA has information which indicates that semimetallic disc brakes should be used only in cars with power brake systems because otherwise they may not pro vide enough stopping power. EPA's response concludes by stating that the NRDC petition is being granted because the Agency believes that the use of-^ asbestos in brakes does present risks to human health. EPA."-| will analyze the exposure from uses of asbestos, the risk ; presented by those uses, and the substitutes for such uses. EPA will also gather information on the price, efficacy, and availability of substitutes for asbestos in brakes. After analysis of this information, EPA will determine what further action is appropriate to address the risks which may be posed by this use of asbestos. EPA's conclusion goes on to say: Based on information reviewed to date, EPA is not prepared to make an unreasonable risk finding for an immediate ban of all uses of asbestos in brakes at this time. Effective substitutes may not be available for certain applications of asbestos in brakes and sub stitutes for other applications of asbestos in brakes are not available in sufficient quantity because of limited production capacity. Retooling may be required to make substitutes available in large volumes. EPA closes its response by inviting the public to submit com ments on issues relating to the petition on or before March 18, 1985. Ontario Ministry Holds Asbestos Construction Standard Meeting . On Dec. 17, Ontario's Ministry of Labour held a public meeting to permit public comment on its proposed regulation entitled "Asbestos on Construction Projects and in Buildings and Repair Operations." The proposal published in The Ontario Gazette CAP CO JEN 0012808 Page 4 of Nov. 17, would establish a performance-oriented occupa tional regulation of asbestos which could potentially apply to all non-mining and non-manufacturing operations involving asbestos (N&N, Nov.). A review- of the proposed regulation was presented by the Ministry's James Henderson. He pointed out that the current proposal differs substantially from an earlier version first proposed in Aug. 1982 and revised in Jan. 1983. The earlier proposal, for example, only distinguished between two types of exposure situations involving asbestos. The current pro posal distinguishes three exposure situations, each requiring a different level of control measures. The current proposal also incorporates many of the recommendations made by the Ontario Royal Commission on Asbestos, and, for the first time, places responsibilities upon building owners for proper pro cedures to be used for work involving friable asbestos-con taining materials. AIA/NA participated in the meeting with written comments sub mitted to R. H. Ramsay, Minister of Labour, and with comments., from the floor. In general, AIA/NA agrees with and endorses;1! the control by procedures approach taken by the proposed reg-! ulation. However, because of the substantial re-working of : the proposal, AIA/NA requested an extension of time in which to review the regulation in depth and, possibly, file addi tional comments for consideration by the Ministry before the proposal is finally adopted. The request for additional time in which to study the proposal thoroughly and submit comments was repeated by over a dozen other speakers from the floor. Accordingly, at the conclusion of the meeting. Ministry officials announced that the comment period for the new proposal would be extended to Feb. 28. Hazardous Waste Law Extended Four Years The Resource Conservation and Recovery Act (RCRA), the major federal law governing the disposal of hazardous wastes, was reauthorized for four years, 1985-1988, by Public Law 98-616. Signed by the President on Nov. 9, P.L.98-616 provides legis lative guidance on issues not yet addressed by existing RCRA programs. Once such issue is the regulation of generators, transporters, and disposers of wastes from generators of 100-1,000 kilograms per month. Previously not regulated by RCRA, small quantity generators would now be subject to regulations which EPA must promulgate by Mar. 31, 1986. The standards may vary from those for large quantity generators but most be sufficent to protect health and the environment. In particular, under P.L. 98-616 EPA should examine whether it is possible to simplify. CAP CO JEN 0012809 Page 5 reduce the frequency of, or eliminate the existing reporting and recordkeeping requirements and still provide adequate protection. Distinctions may be made from requirements for larger generators, and among classes of small quantity gen erators or of wastes produced by them. P.L. 98-616 also defines the regulatory approach to be taken towards mining waste and other special wastes such as fly ash wast, bottom ash waste, slag waste, flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels, and cement kiln dust waste. In promul gating regulations for these wastes, EPA is authorized to modify the requirements relating to liquids in landfills, pro hibitions on land disposal, minimum technological requirements, deep well injection, corrective action, and interim status sur face impoundments for these wastes as long as such modified re quirements protect human health and the environment. P.L. 98-616 recognizes that even if some special wastes are determined to be hazardous, it may not be necessary or appro priate, because of their special characteristics and other factors, to subject such wastes to the same requirements that . are applicable to other hazardous wastes, and that protection,' of human health and the environment does not necessarily imply the uniform application of requirements developed for disposal of other hazardous wastes. EPA Declines Additional Regulation Of Asbestos In Schools In a letter dated Nov. 30 to John J. Sweeny, President of the Service Employees International Union (SEIU), John A. Moore, the Environmental Protection Agency's (EPA) Assistant Adminis trator for Pesticides and Toxic Substances, outlined what fur ther steps the Agency would take to control the risks asso ciated with asbestos in schools and other buildings. On Nov. 13, 1983, SEIU petitioned EPA under the Toxic Substances Control Act (TSCA) to take additional action concerning this issue. Failing to receive what it considered an appropriate response, SEIU on Sept. 11 filed suit against EPA, asking the U.S. District Court in Washington, DC to order EPA to propose rules on asbestos in schools and other buildings within 30 days (N&N, Sept.). EPA's letter begins by stating that although the Agency be lieves there is a serious risk presented by asbestos, its difference with SEIU is on the most expedient and effective approach to dealing with the problem. "We do not agree that Federal regulation is the best approach for deciding whether to abate potential asbestos hazards in schools and other public and commercial buildings," the letter said. "We be lieve that abatement decisions are best made at the local CAPCO JEN 0012810 Page 6 level with EPA guidance and assistance and that these deci sions are being made and implemented1." EPA further believes that there may be a need for federal regulations protecting public employees not covered by Occupational Safety and Health Administration (OSHA) re quirements during asbestos abatement activities. EPA in tends either to propose a rule in June 1985 to establish requirements to protect abatement workers or to explain the reasons that have made rulemaking inappropriate. EPA is also investigating whether it is feasible to promul gate a rule requiring persons to follow certain procedures and work practices during all asbestos abatement projects to limit asbestos exposure to building occupants as well as workers. If the Agency can determine that the rule can be implemented and that the necessary statutory findings can be made, it intends for this rule to proceed on the same schedule as the workers protection rule discussed above. . A press release dated Dec. 4 from SEIU President Sweeney was- ' critical of the EPA letter. "After more than a year of debate and public hearings, the Environmental Protection Agency has decided not to issue Federal regulations for determining whether cancer-causing asbestos materials' in schools are hazardous, for requiring that' corrective actions be taken when such materials are found, or for requiring in spection for and removal of asbestos materials in other pub lic and commercial buildings." "The behavior of the EPA on this entire issue is absurd," Sweeney said. "They admit the stuff is highly toxic. They admit the problem is of immense proportions. And yet they continue to delay or deny remedies." He continued, "The ultimate absurdity is that EPA has created a high level of concern about asbestos, but refuses to tell anyone how to deal safely with the substance." 0MB Advocates CPSC Reductions In preparation for the Fiscal Year 1986 budget, the Office of Management and Budget (OMB) has directed the Consumer Product Safety Commission to cut its budget by 30 percent and lay off 25 percent of its work force, including most of its field staff. Implementation of OMB's order would reduce CPSC's current budget of $36 million to $25 million and would cut staffing from 587 employees to 440. CPSC is appealing the OMB directive, proposing that its budget be frozen at the FY 1985 level minus the 5 percent pay reduc tion being requested of all government departments and agencies. CAP CO JEN 0012811 EPA, OMB in asbestos WASHINGTON 1AP1 -- A proposal- although that figure is now outdated.', .'.tollv every other regulatory Ucusiwi to ban asbestos has turned into a The two agencies are using different You nave to do it to get a conitnun mea squabble between two government methods to calculate the cost of the sure." '' agencies over how much a human life asbestos ban and OMB. which must The OMB official, who also spoke mi is worth -- and whether a life saved in approve new regulations, is arguing - condition that henot be identified, said the future is worth a life saved today. . that its method is right. his agency hopes to wind up talks with The Environmental Protection OMB also says the $2.7 billion in ' EPA in about two weeks. - - -'--I Agency wants an immediate ban on the useofasbestos in cloth, roofing and costs cited by EPA would be incurred over 15 years while the number oflives Asbestos fibers in the air can cause lung cancer and other crippling lung flooring materials. "iiiyl tile and ce ment. It also is proposing declining that would be saved -- 3.011--is com diseases that ofieh do not show up until puted over $0 years, starting in 1995.1 20 years after exposure. - quotas on imports and production of The costs arecosts to the economy in-; , More than 8,000 people will die each asbestos for 10 years; after a decade terms of unemployment, use of poss-' " year until the end of the century be that too would he banned. ibly inferior substitute materials and cause of previous exposure to asbes-' But the Office of Management and possible loss of capital investments by tos, predicts Dr. Irving Selikoff of the Budget says the cost of the ban is too . producers of asbestos products. Mt Sinai School of Medicine. high when compared with the number "They want us to discount lives. We' ., Use. of asbestos, valued for its oflives that would be saved. don't like that," said an EPA official flameproof, insulating and wear- According to OMB, EPA's proposal who spoke on the condition that he not 1 resistant qualities, has declined dras would cost $5 million to $7 million for be identified. "They've never done tically. In 1983, an estimated 239,000 each life saved. that before." , tons were used, only about a quarter of EPA won't put such a price tag on But an OMB official disputed that the peak in the early 1970s. Most comes the cost of the ban. But the proposed contention. "They tEPAl do. We do," from the work of 3,000 to 4,000 miners regulation suggests $900,000 per life. he said. "Everyone else does in vir- in Quebec. "... t * l I OMB Bid Advances lb Screen Agency Rules White House Officials Approve Proposal By Felicity Barringer Wmhmetm fmt Sutf Vrtoar High-ranking White House offi cials have approved an Office of Management and Budget proposal to increase OMB'* control over government policy-making by screening agencies' regulatory pro posals before the rules are drafted the same way OMB now screens their budgets, Reagan administra tion officials confirmed yesterday. OMB officials familiar with the plan expect President Reagan to approve it quickly, adding new weight to OMB's authority by al-. lowing it to look over the shoulders of executive-branch officials as they plan and draft regulations, many of which are mandated by Congress or the courts. Since 1981, a Reagan executive order has given the budget agency the power to review and request changes in proposed and final reg ulations from all agencies except the independent regulatory com missions. The new policy would expand that rote, giving OMB another crack at a proposed rule--before an agency feven begin* drifting it-- and expanding the universe of rules under OMB's control to include those "likely to establish an impor tant new policy or legal precedent or... of unusual interest to the agency head, other federal agen cies, the director of OMB or the. public," according to t paper pre pared in connection with the pro posal, which was discussed by the Cabinet Council on Economic Af fairs last week. A knowledgeable OMB official said be expects t formal announce ment of the new procedures before Christmas. OMB now receives formal semi annual "regulatory calendars* in which each agency fiats its planned rules, but these documents have little, if any, binding effect on the agencies. The new proposal would give OMB a role in approving these documents, and make the.docu ment* as binding as agency budgets are now. Before the Reagan administra tion took office, regulations by ex ecutive-branch agendes would be drafted within the agency, - then published in the Federal Register as "proposed rules' on which the pub lic could comment. In 1981, OMB was inserted into this process, reviewing proposed and final rules before they were published under the authority ofReagan's executive order and leg islation passed in the last year of the Carter administration. All Cabinet agencies except the Defense Department would be sub ject to the new policy; most DOD regulations are related .to military procurement and as such would be exempt, an OMB official said. The policy would also apply to the' En vironmental Protection Agency, the Equal Employment Opportunity Commission, the General Servicea Administration, the Office of Per sonnel Management and the Vet erans Administration. It would still not apply to inde pendent regulatory agendes, such as .the Federal Communication!. Commission and the Federal Trade Commission. The 1981 executive order ex empted rules from review if the OMB review would conflict with judicial or itatutory deadline!; the new proposal, according to' the "talking points' paper, tingles out rules with such deadlines as "prior ity regulatory actions* subject to early review by OMB. According to the paper, "Under this Bulletin, the prindpal executive branch agendes will describe their proposed priority regulatory activ ities, induding pre-rulemaking ac tivities. These proposals will be re viewed like agency budget submis sions, and will be compiled for pub lication in April as the Adminiatration'a Regulatory Program for the coming year." "The purpose of this is for this administration this year and subse quent administrations'... to say what they're all about and what pur poses, objectives and priorities they have in rulemaking,'' said the OMB official. "The purpose is not for the administration to say it to itself but to Congress and the public." . 2 U3 a 2 u lli^i Go si :Jsifs cAPcn .ifn nniufli? D.GTOfficials Sue 3. i Asbestos Firms - v..: For $400 Million.. mstensl m most buildings, rather wsa removing it completely. Fu* te*.weratks will be forced to footmae with the containment ef'MU, unlesa it it totally removed. Local governments are under some pressure to file their suits . now because of the ruling of a fed. eral judge in New York involving "Thefacts that are By Ed Brutkc WMhutiea Part Stiff VfMr The D.C. government filed a $400 million lawsuit yesterday against manufacturers and distrib utors of asbestos to recoup the ex pected multimillion dollar coat of removing the cancer-causing ma terial from the city's public schools and facilities. In filing the suit, the District joins Maryland, Pennsylvania and several cities, including Baltimore, in seek ing damages against the asbestos industry in what authorities believe is the beginning of a tide of similar lawsuits nationwide. Officials here and elsewhere con tend that asbestos makers for years distributed the material knowing its potential hazards, and that local governments must now foot the bill for removing it to meet federal health standards. City Administrator Thomas Downs said the city expects to spend "in the neighborhood of $20 million ... containing asbestos. We're saying that the manufactur ers have a responsibility for the complete, safe removal of asbestos from public buildings.' The D.C. school system has found crumbling asbestos in 162 of its 189 school and administrative buildings, although none of the fa cilities has been closed down be cause of contamination. Parts of some buildings have been cordoned off in an effort to protect school children and staff workers. School officials have asked the City Council for $5.8 million to fi- ' nance the asbestos cleanup. Dawns said at least 100 buildings at the Lorton Reformatory in Fair- . fax County contain asbestos and the city has taken steps to alleviate the hazard. Industry officials could not be reached for comment yesterday about the District's suit. In the past, some industry officials have argued that the presence of asbes- tos does not constitute a problem that requires removal." The cleanup here and elsewhere comes at a time when the federal government is scaling back funding to remove' asbestos from the na tion's schools while the U.S. Envi ronmental Protection Agency is cracking down on local school boards where asbestos has been found. Asbestos also has been found in suburban schools here. The EPA in September proposed fining the Arlington County school system $14,600 for failing to post warning notices of asbestos presence in two schools. In September, Maryland filed suit against 47 asbestos firms over ma terial installed in public buildings, ' while authorities in Virginia say they are planning to file a similar court complaint. In their suit, filed in D.C. Supe-' "rior Court, dty attorneys claim that the manufacturers are "responsible either through negligence or in some other actkoabie manner* for the hazards now caused by asbestos in public facilities, . The suit contends that industry officials for years "suppressed, dl-' couraged, and/or retarded research and publication* of information con cerning the link between asbestos and various diseases and "actively concealed and misrepresented such .^relationship.' According to the suit, the com panies involved 'adhered to an in dustry-wide practice of refusing to provide necessary warning as to the hazards presented by exposure to asbestos.* "The facts that- are becoming known are that the manufacturers had substantial knowledge about the dangers,' Downs said. "If they knew that, they had a responsibility toward public facilities.* Downs stressed that the ultimate cost of dealing with asbestos may not be known for many yean be cause the dty now is containing the r becoming known ; are that the manufacturers had substantial knowledge about the dangers " --City Administrator IVxnM Downs the bankruptcy filing of Manvjlle - Carp., the largest manufacturer"jof asbestos in the western hemi sphere.' The judge has ordered that claims for property damage against the company be filed by next month. Downs said the dty has already filed a claim in that case. - A national coalition of attorneys it forming to represent any of the nation's 4,400 school boards which decide to sue the industry. The problem is obviously one of nationwide scope,' said Neil Peter*on of Philadelphia, one of the at torneys involved. The only ques tion is how many individual school boards will respond and how many need to." -- 0*aaaConaa( IHbaribaa Cora.. VabaroK CAS Cota. Wtraa. NJj TW Cafaw Cor*. Waakfctfaj; Eaala PtdM bSlriaa. Wabaapoa; Aia*na Wort* lilil-r'n Wiltiaetna:KaaatCoca-.Waakaapaa:Hr*, kaart Cota, fttltarf. Otai Soortata Tapia Cota. Oattant. H.C.- OwaaWaoM be. Waabopot On-- taai Cata. Vofar Sot*, fa.; US. Gja-- Co.. Waab hUai; WX Grata t Co. Waabopat Cr.iH.mn. t laitta. lac. Wabaapat Alas, KaGoaai Gna-- Ca, WabbpoK US. atai PraAttaa Ca. fcaaAoaa. HJ.- SeaiM hauUt--a lac. Kaaaaa CUT. TW Oarit. Pfiaar A Co. be. . Ha* Tort; Gaorcla firft- Cota. Alta** ftafca b*atriaa it, Iliiybl. Taxac C. 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Vaotbnat; aat Taratt Aa6aatoa TAtaa LiA, The Vashihgton Post " December 15,1984 CAPCO JEN 0012813 I , Court Rulings May Discourage Firms ' -; I FazingSuits FromSeeking Chapter11 Aid Z-L~ I nzrMmmRm (M)35.000 By Jonathan Dahl Staff Reporter n/Tt* Wau.SthkttJovmmal * Manville Corp.'s controversial tactic of using the bankruptcy court system for pro tection from thousands of lawsuits appar ently won't be easy for other companies to imitate. The Denver-based maker of paper and' building products filed under Chapter U cf the federal Bankruptcy Code two years ago without being broke, but claimed it needed protection from 16.500 lawsuits from individ uals claiming health damage from exposure to Manville-made asbestos products. The fil ing generated widespread public concern that other companies might someday try the same strategy. But two recent federal court rulings have upheld a change in the bankruptcy code this year, requiring district courts to handle per sonal injury lawsuits once assigned to bank ruptcy. courts. Not everyone agrees, but many bankruptcy law experts say that will make filing for Chapter 11 protection less appealing in some circumstances. Under Chapter 11. a company continues to operate but has court protection against creditors' lawsuits while it tries to work out a plan for paying debt The bankruptcy code change may not hinder Manville or other companies cur rently deep into bankruptcy-law proceed ings. But it could have important ramifica tions for companies that face thousands of personal injury suits in the future. "I think it's definitely less attractive now" to duplicate Manville, says Vem Coun tryman. a bankruptcy-law professor at Har vard University. Debate Over Manville To be sure. Manville's case Is hardly en viable. because the proceedings have stalled for months. But it's been a source of intense debate. The company contends its filing ben efited victims by ensuring equal compensa tion. Critics, however, say the filing could reduce the company's obligations to as bestos victims. The fiiing has allowed Manville to tty to consolidate its lawsuits into one claim in bankruptcy court. Outside Chapter 11, the company had to try each suit separately, a considerably more expensive process. ^ast summer, however. Congress or dered that all personal Injury and wrongful death suits be tried in district courts. It wasn't immediately clear how the higher courts would interpret that, but Judge Wil liam Hart in Chicago last month and Judge iJblin; Keenan-, in- Mew York this month af firmed the change. The judges, though, denied efforts to transfer personal injury claims in current Chapter 11 cases immediately into district court. Instead, they ruled the cases can be transferred after the companies make com pensation offers. Manville and other companies, thus, still could make adequate compensation offers, but legal experts say the advantages of fil ing Chapter 11 have been reduced. NOV IS 1384 Ruckelshaus responds to editorial on asbestos <s is 3 S3 &j uZZi 8; U dS <2 S Z* f In a recent editorial you suggest that'the EPA "seems lo be ralher ' in a time of very tight constraint! ' on the federal budget, the mam fi laid back" about asbestos in the ifli nancial initiative for actual cleanup lion's schools. Thai Is hot so. We in- must also come from local school tend to fully and promptly implement systems. They should not the S50 million program of Quints end loans lof asbestos 1 wait on federal funds, which are tar geted only toward school districts daasua.Congress has approved by' least able financially to undertake the June 1965 deadline. remedial measures, or hope Meanwhile, (he EPA'will continue' for larger appropriations in future' to aggressively implement the exist fiscal years. ing program, one that appears to be working well according to a re Indeed, the question might be cent survey. We provide across-the- raised of whether ikmakes sense fc board technical assistance to citizens to send that} taxes to Wash schools with asbestos problems and ington only to get'thbm back again insist that all schools complete in minus administrative ex spection ol their premises and notify penses, or whether they should pay parents, employees and faculty . for containment and removal pro when friable asbestos is lound. grams they can tailor to their own About two-thirds of all schools in needs in the first place. this country have already Contrary to popular opinion the complied with Ihese requirements asbg.sTqs problem, though serious, t and we believe most of the remain not an emergency. H can be'cbn- der wilt do so during this academic Uolled by the existing program, year. which is working exactly as we in We cannot set national guidelines tended. EPA will continue to up for the cleanup process because grade its technical assistance ef each case of asbestos contamina forts and will enforce the asbestce tion is unique. Removal works best regulations with the greatest vigor in some cases and encapsula against schools which fait to inspec tion works best in others. Cleanup their premises. Working together we strategies must, therefore, be devel can make the schools of America oped on the local level by those closest to the problem. National safe for all who work and study there. ( guidelines would, in any case, take at least two years to develop and no such delay is acceptable. William D. Ruckelshaus, administra tor, Environmental Protection Agen cy, Washington, D.C. Spreading Out Lawsuits "The whole concept before was to make the process as efficient as possible for tbe companies," says Lawrence King, a bank ruptcy-law expert at New York University. "Now, this could spread out their lawsuits if people don't like what they get in bank ruptcy court. That could make things much more expensive and time consuming." Manville and some attorneys don't agree. They contend district courts will eventually shove personal Injury cases back to bank ruptcy courts. "What district Judge wants to handle all that? It's too much work," says one attor ney familiar with Manville's case. But other attorneys counter it's unlikely all district judges would Ignore the intent of a statute, and point out that neither Judge Hart nor Judge Keenan did. . ' Ironically. Congress's original change in the bankruptcy code was apparently acci dental. At the time, the lawmakers were ac tually more concerned with the jurisdic tional powers of bankruptcy judges than with the Manville case, say some congres-. sional aides. As previously reported, an apparent wording error resulted In the bankruptcy code change applying to both pending and future cases, when it was supposed to apply only to future cases. "In hindsight, people might say now it (the change) was all planned out," says a former aide involved In the legislation. "The fact of the matter is that most of this hap pened at the spur of the moment, and that there wasn't any grand scheme." CAP CO JEN 0012814 INj `Cigarette Ruling'Seen Having Little Effect on Asbestos Insurance By S'JSAN BANHAM .* .w .u of Commorc* Spocui A reccm ruling by a U.S. District Court .ledge in Now Jersey stating that the warning inr cigarette packs does not prevent smokers from suing the tobacco companies, hasn't had much of an effect on product liability insurer*. A few years ago. many of the product liability insurers of asbestos companies tried to convince the tob'accolndustry to assume some oft the liability in their asbestos exposure man who is most closely involved with the study of cancer in asbestos workers who also smoke, "The combination of asbestos exposure and smoking cigarettes vastly increases the risk of lung cancer." . V\ Dr. Selikoff added that "conclusive evi dence through our extensive research on the subject has led us to believe that an asbestos worker who smokes has five times the risk of other people who smoke bat are not exposed to claims. asbestos." In fact, three years ago, the Commercial This study was one of the prime reasons Union Insurance Companies filed cross-com why Mr. Bailey bad held to his cross: plaints against the tobacco industry as part of complaints against the tobacco industry. Now, its- defense from numerous asbestos claims with the recently approved bill by Congress, filed against them. The insurers at the time which President Reagan is expected to sign, contended that claimants alleging asbestos establishing four new, effectively worded exposure-related disease complicated their warnings for cigarette packs and advertise injury further by smoking cigarettes. ments, Mr. Bailey states, "It it quite obvious According to a spokesperson at Commer that the labels prior to these four were not at cial Union, these cross-complaints have been 1 all adequate. Hopefully, in the future, it will be shelved because of "constant judicial road realized that no label-is adequate because blocks." tobacco is addictive, not habit-forming. If the The spokesperson added that Commercial Union Companies have "really not involved thnsselves anymore in the issue." tobacco industry wants to advertise their product so that it induces people to become addicted, then they should contribute to damages -- especially with regards to Com The recent Jersey Court ruling may have mercial Union's shelved asbestos litigation," the possibility of an effect but "we are leaving be urged. it in our lawyers' hands." The surgeon general has found that smok The reason ior Commercial Union's publi ing Is the major single cause of cancer deaths cizedinvolvement was largely the result of the in the United States and is the leading cause of research director at the Defense Research Institute in Chicago, "This ruling by U.S. District Court Judge H. L. Sarokin in New Jersey most likely will not continue in other states. Nor do I see the ruling to have an effect on the shelved asbestos litigation. This ruling is most likely just an appeasement for the plaintiff and probably will noLstand." Dennis Connelly, senior counsel at Ameri can Insurance Association, stated that the ruling la just New Jersey's way ot "torturing common setae." Mr. Connelly added that people are warned of the risks involved with smoking and that if they chose to continue the habit, it is a "selfinflicted abuse." If the tobacco industry lam this case, which be very much doubts, thenthe defeat will "just be another indication of.the deterioration of traditional defense." actions of the then senior vice president for Commercial Union, William Bailey, who staunchly opposed the tobacco industry's "Iree-ride over something that is mostly the result of their product" At the time, the claims were against the Pittsburgh Corning Co., then the largest asbestos company in litigation. According to Mr. Bailey, now an executive vice president with Litigation Services Inc., an automated legal services corporation in Boston, "The judge at the Pittsburgh Corning case was incorrect when he pronounced that it was an incontrovertible fact that exposure to asbestos fibers creates disease. This is absolutely wrong, not only legally but medically, econom-, ically and socially," be said. lung cancer, emphysema and chronic bronchi He noted the three doctrines that would' tis. Researchers have also found that smokers apply to the tobacco Industry's defeat of the are far more likely than nonsmokers to suffer, claim: contributory negligence, warning, and cancers of the larynx, mouth, esophagus, assumption of the risk. "If the Individual it bladder, cervix, kidney and pancreas. aware of the harm and still smokes anyway, it According to survey results released last' is of his/her own peril, he/she has assumed the year by the U.S. Department of Health and risk." Human Services, ignorance is the reason why And if the doctrines cannot be used as a some smoke. "Approximately 40 percent of the basis for defense of the tobacco industry, nation's high school seniors did not believe that states the Defense Research Institute's Hoff there is a great health risk from smoking. man, then "a whole new can of worms will be Other polls have shown that nearly half of all opened involving years of expensive litigation. women were unaware that smoking during And that, I just cannot foresee happening."- pregnancy increases the risk of still-birth and miscarriage, and that nearly a third of Americans were unaware of the link between smoking and heart disease.' Mfe Baileyadded that the tobacco litigation insotving asbestos "never truly got off the ground" as he would have very much liked. However, he noted that the case involving a New Jersey woman against the three major cigarette makers, Liggett Group Ino, Phillip Morris Inc., and the Lorillard Division of Loews Corp. has at least paved the way for thousands of other suits to be filed, such as the one about whether the companies must pay damages to seven smokers who contracted lung cancer, five of whom died. According to Dr. Irving Selikoff, director of environmental sciences laboratories at Mount Sinai School of Medicine in New York and the Yet, for years, tobacco companies have maneuvered successfully within Coegress and key federal regulatory agencies, winning valuable exemptions from the Consumer Product Safety Act and the Toxic Substances Control Act TTiey have fended off attempts to coerce them to disclose the chemicals in cigarettes. And, they have maintained the federal price support program that guarantees farmers a minimum price for their tobacco. "So," says Mr. Bailey, "it's time enough that those against the tobacco industry have their day in court" - Unfortunately, not everyone feels as strongly about the' issue as Mr. Bailey. According to Stephanie Hoffman, assistant 12A-67 JOURNAL OF COMMERCE DAILY 23,000 tf DEC 5 1384 CAPCO JEN 0012815