Document XR0Vd2bbpqywbOwxeQBBOpDKx

/ OSHA's Informal Public Hearing On Proposed Standard For Asbestos Now In Second Week As previously reported (N&N Apr. & May), the U.S. Occupational Safety and Health Administration (OSHA), began on June 19 an informal public hearing on its proposed standard for occupa tional exposure to asbestos which was published in the Federal Register of Apr. 10. The regulatory text of the proposal is limited to two alternative permissible exposure limits (PEL) of 0.2 f/cc and 0.5 f/cc; a requirement for an employee infor mation and training program; and warning signs to be displayed at locations where a revised PEL may be exceeded. The proposal allows for respirators to be used in place of'En gineering controls or work practices in order to meet any REL below 2 f/cc. Engineering controls and work practices would remain the mandated methods for achieving airborne asbestos concentrations of 2 f/cc. The lead-off witnesses for OSHA included R. Leonard Vance, Ph.D., Director, Directorate of Health Standards Programs; William J. Nicholson, Ph.D., Associate Director, Environ mental Services Laboratory, Mount Sinai School of Medicine; Hans Weill, M.D. and Yehia Y. Hammad, D.Sc., Tulane University School of Medicine; Trevor L. Ogden, Ph.D., The Health and Safety Executive, Government of Great Britian; and contractor representatives from Research Triangle Institute and CONSAD Research Corporation. To date, other witnesses have included Margaret Stasikowski, Director, Chemical Control Division, Office of Toxic Sub stances, U. S. Environmental Protection Agency, and a number of representatives from organized labor. The bulk of labor's testimony came from spokesmen for the Building and Construc tion Trades Department, AFL-CIO. Dr. Vance said that a final standard (probably separate regu lations for general industry and construction) may be expected to be published by June 1985. The principal testimony given by Dr. Nicholson presented a defense of OSHA's risk assessment of which he is principal author. He stated that the agency's analysis of all studies providing any information on doseresponse failed to show that any unique risk can be attributed to a particular fiber type. Dr. Weill was critical of choice ASBESTOS INFORMATION ASSOCIATION 1745 Jefferson Davis Highway. Crystal Square 4. Suite 509 Arlington. Virginia 22202 (703) 979-1150 CAPCO JEN 0013092 Page 2 of studies used in OSHA's risk assessment and said that, at current asbestos exposure levels, no asbestosis related impairment is expected to occur. Dr. Ogden basically stated that monitoring at low levels of exposure can be reliably monitored based on British experi ence, but acknowledged that enforcement is different in the U.K. from that in the U.S.A. Ms. Stasikowski reviewed EPA's planned regulatory initiatives affecting the asbestos indus try. She said that a proposal which would ban certain asbes tos-containing products was currently undergoing review by the Office of Management and Budget; however, the outcome of OSHA's current rulemaking on asbestos would be considered before any final rule would be issued. The principal focus of labor representatives was in opposition to the flexibility of respirator usage in the OSHA proposal and an explanation and defense of a separate standard for the con struction industry as developed by the Building and Construc tion Trades Department, AFL-CXO. An overview of this Association's comments which were submit ted on OSHA's proposal was included in News & Notes of May 3J. AIA/NA witnesses are scheduled to present testimony on July $, 9 and 10. The most recent schedule of witnesses indicated ttfat Dr. Irving J. Selikoff, Mount Sinai School of Medicine, will-f appear on July 2. It is expected that the informal public & hearing will conclude on July 12. AIA/NA's Ninth Industry-Government Conference Scheduled For Sept. 18-19 The Association has scheduled an industry-government confer ence for Sept. 18-19, 1984, in conjunction with its 14th annual meeting and third quarter meeting of board of direc tors. The conference and meetings will be held at the Twin Bridges Marriott Hotel, Washington, D.C. Program format for the industry-government conference is simi lar to that followed in previous years. The industry-govern ment conference will be integrated with annual meeting. In addition to Association officials, a number of distinguished speakers have already accepted an invitation to participate. This year's conference is of special significance in view of the ongoing and prospective regulatory initiatives by OSHA and EPA which have major impact on the U.S. asbestos industry. The conference begins with a reception and dinner on Tuesday, Sept. 18; the invited speaker is Alvin L. Aim, Deputy Admini strator, U.S. Environmental Protection Agency. Speakers at breakfast and lunch on Sept. 19 will be acting OSHA Head Patrick R. Tyson, and Nancy Harvey Steorts, Chairman, Consumer Product Safety Commission, respectively. During the confer ence on Wednesday morning. Sept. 19, guest speakers include Jim E. Lapping, Director, Safety and Health, Building and Construction Trades Department, AFL-CIO, Malcolm Ross, Ph.D., CAPCO JEN 0013093 Page 3 U.S. Geological Survey, and to-be-determined speakers on the asbestos and health relationship and current perspectives from the Asbestos International Association. Details regarding this important event in the Association's work year will be provided to member and other interested parties in the near future. In the meantime, inquiries to AIA/NA Executive Director are welcome. As related item, regular meetings of AIA/NA's Executive Committee are scheduled for Aug. 14 and Sept. 18 in Associa tion office and Twin Bridges Marriott Hotel, Washington, D.c., respectively. Sen. Percy Introduces Asbestos Compensation Bill On May 23, Sen. Charles H. Percy (R-IL) introduced a bill, S.2708, entitled "Asbestos Workers' Recovery Act." Accord ing to Sen. Percy, as quoted in the Congressional Record, "this legislation is intended to address the extremely ser-i]ous problem of how to provide compensation for workers wha;| have been injured through exposure to asbestos." Sen. Percy's co-sponsors on the bill are Sen. Clairborne Pell iJ (D-RI) and Sen. Daniel K. Inouye (D-HI). S.2708 has a number of important provisions designated to address the concerns and incorporate the views of those who have criticized prior effects to establish an asbestos com pensation system. It would cover only occupationally re lated asbestos diseases. To determine what injuries fall within this category, it would establish a national medical panel of scientists. All those who have been exposed to asbestos in their occupation would be eligible under the sys tem, including those whose injuries arise from the occupa tional exposure of a spouse or parent. Instead of creating a wholly federal workers' compensation system, proposed Asbestos Workers' Recovery Act relies on existing state compensation programs to adjudicate causality and disability issues. Benefits paid under the act would be additional to state workers' compensation benefits which presently cover payment of medical expenses, lost wages, and survivor benefits. A supplemental payment equal to 92 times the state average weekly wage would be made for total dis ability or death. This amount would be reduced proportion ally in the same degree as the disability is less than total. Financing for the program established tinder the act would be provided by defendants in asbestos tort cases, their insurers, and the U.S. government. Costs would be allocated according to a percentage share based on the payment experience of the contributors. The allocation formula would be reviewed at least every three years to fairly reflect sources of exposure reported by successful claimants. CAP CO JEN 0013094 Page 4 Sen. Percy emphasized that enactment of his program could re sult in actual savings to the U.S. government. A study by the Urban Institute has estimated that each asbestos lawsuit costs the government an average of $4,000 per year, or a total of more than $48 million. According to the Department of Justice, these costs could exceed half a billion dollars in the next decade'alone. Such costs go simply for running the court sys tem needed to try the cases, and never reach the disease vic tims. In addition, the bill would make benefits provided under the act a claimant's exclusive remedy for personal injuries aris ing out of occupational exposure to asbestos. Although S.2708 would not apply to litigation that has already matured to full judicial determination, it would apply to other claims current ly before the courts and prospectively to all claims for asbes tos injury. However, tort remedies would remain available against corporations and other defendants failing to partici pate and pay their fair share of the expenses involved in fund ing the system established under the act. Meanwhile, in the House of Representatives, Rep. Austin J. *. Murphy (D-PA), joined by 28 co-sponsors, on June 28 introduced H.R.5966, a bill also entitled "The Asbestos Workers' Recovery Act." Except for some changes in the wording, this proposal is virtually identical to S.2708. Although probably introduced too late to be considered before Congress recesses for the 1984 elections, both of these mea sures demonstrate an ongoing Congressional interest in finding an equitable solution to the problem of compensation for occu pationally-related disease. Superfund Bill Approved By House Committee On June 20, the House Energy and Commerce Committee voted 38-3 to approve H.R.5640, the "Superfund Expansion and Protection Act." The proposal represents a five-year, $9 billion dollar reauthorization of the Superfund, created in 1980 to clean up inactive and abandoned hazardous waste sites. Chief sponsor of H.R.5640 is Rep. James Florio (D-NJ), chairman of the Commerce, Transportation and Tourism Subcommittee of the House Energy and Commerce Committee. Rep. Florio's plans to reauthorize Superfund, which is due to expire late in 1985, this year suffered a setback in April when his own subcommittee voted against approving H.R.4813, his original proposal. Be sides increasing Superfund by expanding the list of chemicals to be taxed, that bill would have created a federal cause of action for injuries claimed to result from exposure to chemi cals from hazardous waste sites, and would have shifted the burden of proof in such cases from the plaintiff to the defen dant. CAP CO JEN 0013095 Page 5 While no longer shifting the burden of proof, H.R.5640 still would establish a federal court cause of action for injuries claimed to result from hazardous wastes. However, an amend ment was added to the bill by Rep. Norman Lent (R-NY) in order to clarify cases when citizens can file lawsuits for health or environmental damages. Lent's provision limits individuals to suing the EPA administrator when he fails to perform non-discretionary duties under the Superfund law, any governmental unit that violates the law, and any indivi duals who have, or are contributing to, disposals that endan ger health or the environment. H.R.5640 is designed to derive $1.45 billion a year from a chemical feedstock tax, including a tax of $13.92 per ton on asbestos fiber, and $600 million a year from a waste-end tax. Fertilizer feedstock, copper, pig iron and coal coke would be exempt from taxation. Mining wastes would only be taxed if found to be hazardous and Congress later legislated a tax on them. Although approved by the Energy and Commerce Committee, the Superfund reauthorization must also be reviewed and approved by the Public Works and Transportation Committee and the Ways and Means Committee of the House. A floor vote cannot taKjg place in the House before these committees complete their de liberations on the bill. A Although no action has yet taken place in the Senate, the Environment and Public Works Committee of that chamber is ex pected ot begin its Superfund review process soon. Federal Chemical Carcinogens Draft Policy Published In the Federal Register of May 2, the White House Office of Science and Technology Policy issued its final draft of a report intended to serve as a guide to federal agencies in regulating cancer-causing substances. According to the notice, the principles outlined in the document cover shortand long-term carcinogenicity testing, epidemiological meth ods, exposure assessment methods, and risk assessment methods. Prepared for the White House science office by scientists from nine federal agencies, the document does not suggest one meth od cancer risk assessment; rather, it offers a six chapter re view of the science of chemical carcinogenesis and a set of "general principles" concerning cancer risk assessments. Ronald Hart, director of the National Center for Toxicological Research, directed the two-year effort. The general principles, according to the document, "were devel oped to provide interim guidanae in areas of uncertainty until such time that additional scientific experimentation provides the required information needed to improve estimations of risk in human populations." CAP CO JEN 0013096 Page 6 According to the document, the authors attempted to leave the majority of policy decisions and scientific judgements inherent in risk assessments to the regulatory agencies. However, the document does acknowledge that several of the "general principles" do include policy judgements. For ex ample, under long-term animal tests, the document stated, "Agents found carcinogenic in animal studies... are consid ered suspect human carcinogens." In addition, the new guidelines abandon the possibility of a "threshold" approach to carcinogens on the ground that science is still unable to determine for regulatory purposes those thresholds at which each cancer-causing substance pre sents a risk to human health. The new guidelines continue to assume that any exposure to a cancer-causing substance, no matter how low, conveys a measureable risk of cancer. Unlike an earlier version of the draft, the final draft did not propose to differentiate between agents that change the genetic properties of the cell and those that cause cancer by other means. The general principles are based on the six-chapter review . 7-]of the science of chemical carcinogenesis. According to the document, "common themes within each chapter are the i uncertainty, the gaps in data, and the questions of* inter-:! pretation associated with some aspects of the scientific v information used in the risk assessment process." Comments on the draft document will be accepted until Aug. 1 and should be submitted to Ronald Hart, NCTR, Jefferson, Ark. 72079. Senate Adopts Asbestos In Schools Act On June 6, an amendment offered to the Education for Economic Security Act, S.1285, by Sen.'James Abdnor (R-SD) was adopted by the Senate. The amendment, entitled the "Asbestos School Hazard Abatement Act," places responsibility for an asbestos in schools abatement program with the Environmental Protecttion Agency rather than with the Education Department. The amendment is identical to one introduced by Sen. Abdnor on March 29 to S.757, a bill to reauthorize the Solid Waste Disposal Act. Sen. Abdnor states in the June 6 Congressional Record that, "the concerns raised by representatives of the asbestos industry in response to the original amendment filed on March 29 of this year have been given careful consideration. The final section of the original amendment has been adopted in its entirety, and the liability provisions have been altered in response to industry's concerns." CAP CO JEN 0013097 k Jim Walter Coip. Agrees To Settle Asbestos Suits f ^1 % By MITCH BORETZ Stiff Writtr/or Tempt hy iriyn , work and medical histories and settle ". quicker processmg,Townsend says, and cases privately. Townsend says. Roughly' ' legal costs would dwindle. "The whole TAMPA--Two Jim Walter Corp. 25,000suits claiming disability orillness ' situation as his presently dealt with is a from asbestos, believed to cause cancer, ' nightmare.".-*. . subsidiaries have agreed tojoin a system to settle thousands of asbestos-related lawsuits. . ' --,. Sixteen manufacturing firms ana a' dozen insurance companies will form an office to handle asbestos-injury claims by the fall, says David Townsend, Jim Walter vice president for public relations. are pending against asbestos companies, according to The New York Times. In addition, many of the companies, including the Jim Walter subsidiaries,. are suing their insurance companies for' failing to settle claims. "v - " . Each insurer and asbestos firm would contribute to the office* fund based on the costs of its' past suits, Townsend' says. Actual amounts haven't been calculated yet, he says. Other companies Forming the claims officewould nullify . the insurance suits and probably would ' could join the system by contributing their share. X st a a Celotex and Carey Canada Inc., part of the Tampa-based building-products conglomerate, faced 15,600 such suits as oflast August, the companyIs 10-K report to shareholders says. The office would evaluate claimants* lead many claimants to drop their court AccordingtoJim Walter* 10-K, 1983 lights, Townsend says. "It would effec / asbestos settlements averaged $7,500 per tively eliminate the litigation," he says, . person. Insurance companies paid most although a claimant still could opt for a , . of the legal and settlement expenses, trial rather than an office settlement. . and, "the company's actual costs have "Any centra] claims facility would allow not been material," the report says. r ajff Center Publishes Report on Asbestos Litigation Williamsburg, Va. -- The Ju ing from the large number of dicial Administration Working parties in a single case. ......... ; Group on Asbestos litigation has published its Final Report with Recommendations, accord ing to John M. Greacen, deputy director for programs, National Center for State Courts. The group assembled by the Center consisted of56 representatives of the Judiciary, the bar, manufac turers, law-related organiza Among the group's recom-mendations for simplifying pretrial and trial procedures were the use of standard pleadings, a . consolidated pleadings file, con- solidation of cases within areas or geographical regions, use of liaison counsel, and strong man agement by judges. - tions, and insurance companies, The report notes that a volun plus two staff members of the tary dispute-resolution process is Center. being studied by representatives of the plaintiffs' bar and of the The year-long study by the working group found that al though asbestos litigation amounts to a small percentage of asbestos producers and their in surers under the auspices of the Center for Public Resources. all civil cases, it is concentrated The major part of the report in certain areas, creating mas consists of a model standing sive bottlenecks. Other factors order of court for the handling of complicate such cases: the long asbestos litigation, along with latency period of asbestos- detailed interrogatories for. related disease; the difficulty of plaintiffs, defendants, and third locating and evaluating evi parties. The Working Group on dence; the marked tendency of Asbestos Litigation stressed that asbestos cases to go to court, in its recommendations had been contrast to settlements by insur approved by the members of the ance companies in most other group but that it was impractical tort litigation; and the higher le to secure formal approval by all gal costs and complexities result- the organizations represented. .. 45A-11 NEW JERSEY LAW JOURNAL WFFKLY 7 Win (Judicial Working Group on As-. bestos Litigation,Final Report with Recommendations. Na tional Center for State Courts, 300 Newport Avenue, Williams-, burg, Va. 23185. 62 pages; $8.00 plus $2.25 postage and handling^) r MAY 17 1984 Texas Lawyer ToBeTappiU As OSHA Chief - By a WaixStruct Journal Reporter WASHINGTON - President Reagan an nounced that he will nominate Robert Row land, a former Texas lawyer and Reagan political activist, to head the Occupational Health and Safety Administration. Mr. Rowland, 52 years old, will be nomi nated to be assistant secretary of labor for occupational safety and health, making him also OSHA administrator. If confirmed by the Senate, he will succeed' Thome Auchier. Currently, Mr. Rowland is chairman of the Occupational Safety and Health Review Commission, an independent panel. The Health Research Group, which has brought several lawsuits against OSHA1 in recent years, sharply criticized Mr. Row- .land, saying it is inappropriate for someone without a serious, competent scientific back ground to direct a scientific regulatory agency. "He doesn't know very much from a scientific standpoint about occupational safety and health," said Dr. Sidney Wolfe, director of the group. But business groups called Mr. Rowland an excellent choice. The U.S. Chamber of Commerce applauded his work on the Occu pational Safety and Health Review Commis sion. "We didn't see him as a jurisdictional expansionist," said Mark de Bernardo, a Chamber official, referring to cases Mr. Rowland reviewed. "He didn't make law.'.' he added. THE WALL SIREET JOURNAL Friday, June 29, 1984 CAP CO JEN 0013098 '1 * s blame an *, ..._.-^ -..V.' . ;."-; -'.&-'-'-:7U`JS~-.j-*:;-~^*-- .-- . ' 0v^*>3fe&if-?:.*.*.* -jo: CO CO CO -J By MfcftMl A. Barbae P*l Reporter A chemical compound designed , to replace asbestos as a tire retar* dant is embroiled in an industrial' ' poisoning controversy all its own. . . Members, families and friends of the Insulators and Asbestos Workers union are trying to link Thermo-Lag, a fire retardant and asbestos substi tute, to recently discovered ailments. Men and women who have worked with Thermo-Lag are being asked by Ron Stultz of Bothell, an asbestos worker who has filed a class action suit over the product in King County Superior Court, to ' volunteer information about any ef fects of exposure. About 40 workers and family members of the asbestos workers union met at Seattle's Labor Temple recently to begin gathering information. In all, 75 people who say they suffered disabling medical symp toms after working with Thermo-Lag at Washington Public Power Supply System's plant No. 2 in Hanford . nearly two years ago are participat ing in the suit, said Jerald Pearson, the Seattle attorney who filed the suit in February. State tests The workers are up in arms because they don't know what kind of chemicals they were exposed to, despite repeated requests for the information. Although it has national legislation in the works to make companies reveal more of their secret chemical recipes, the U.S. Occupational Safety and Health Ad ministration said companies current ly don't have to tell all. Tests conducted by the Washing ton Division of Industrial Safety ana Health have identified one of the* main ingredients in Thermo-Lag as methylene chloride, a widely used solvent that can turn to carbon monoxide when absorbed into the bloodstream. Stultz, who worked at the WPPSS plant from October 1982 to - April 1983, claimed the project was the first ever in which Thermo-Lag had been used, and that workers therefore were "guinea pigs." He said up to 2,000 workers at WPPSS troweled the pasty, fibrous Thermo-Lag onto walls to protect electrical systems from fire. . None of them, Stultz charges in the suit, was warned of the alleged dancers. if1'. In'addition to WPPSS,'the suit - excluding Washington, have right-to- names the maker of Thehno-Lag, ' know laws. TSI Inc. of St. Louis. Mc^.' as a; r >-r;. "Who brewed this batch?" asked 1 an angry Rod Sullivan of Femdale at defendant, as well as subcontractors ' the recent union meeting. He aid he Bechtel Corp. and Brand Insulations: - installed Thermo-Lag at the WPPSS' Inc. of Park Ridge, 11L . . plant and "not a week went by that TSI officials m St! Louis did not. xn 5 2 i iU c* return Post-Intelligencer phone calls, ",l ..we. .didn't ask, `Hey, what's in . John Britton! WPPSS spokesman . this?'" - in Richland, said, "We really have no In a memorandum alerting work comment on it It's pending litiga ers to the possible toxic effects, tion. The details will come out in', lawyer Pearson, warns that "the ssz i1Ti3luale court." ' effects can be bizarre: numbness, Bechtel, headquartered in San - fever, breathing changes, brain dam Francisco, declined comment be age, changes in blood circulation, cause of a corporate policy not to impotency, sensitivity to light, weak- talk about pending litigation, said ness and fatigue are only a sam-. spokesman Larry Miller. ; pling." - Richard Keeley. treasurer, of Sullivan, 42, said his joints began Brand Insulations, which hired the- ` - to ache several, months ago and he - workers who later filed the suit, said.: began to develop unusual symptoms . it has turned the matter over to its - all over. insurance company. ; -. - -- . "At first I thought it was old age. Keeley said Brand's role was a minor one. "All we did .was. install the material supplied to us by either WPPSS, Bechtel or TSI," Keeley' said. - .. - - but then I had trouble reaching into my pocket and couldn't get my bands to grab the change.". - Stultz, who. wears sunglasses 'indoors because he says his eyes have weakened, claims doctors re- cently scraped an inch of chemical Executive director . residue from his lungs. He said his Meanwhile, Stultz, who recently underwent major surgery for breath ing problems and says he subse quently was declared by doctors to be disabled due to chemical poison-' mg, said one reason he filed the suit ' ' whole system seems affected, his joints ache, he breathes heavily, and he has lapses of thoughts Said Schilling: "If it's not al ready, this is going to become as bad or worse than asbestos;. was to get TSI Inc. to provide a Harborview screening complete list of chemicals contained in Thermo-Lag. " "Perhaps by this action (the. lawsuit), we can keep our kids, or Joe Schilling, executive director . our grandkids, or our friends from of the Injured Workers Organization, being exposed to this." said that except for a few chemicals Pearson said Harborview Medk gleaned from a state examination, 'cal Center's occupational medicine Thermo-Lag's contents have not. unit has screened several workers been revealed. , who claim to suffer from Thermo- as c / ag|g j2i ,(<n9j 3uB;&>* _ . o> ft** 1 g-Eo Schilling said the suit is tied to one of his pet projects, the right-toknow issue, being fought in Olympia. " Essentially, he said, workers want the right to know, in dear English, what kind of substances they are' working with. A right-to-know bill passed both houses of the state Legislature last session but portions of it were vetoed by Gov. John Spellman. Chris Graybill, spokesman for OSHA in Washington, D.O., said that while some chemicals are subject to regulation, "there is no national requirement that manufacturers tell workers or anybody what's in a . ~ .- Lag poisoning. At Harborview, industrial hy- gienist Nick Heyer said, "We've seen people who were exposed to ThermoLag in Eastern Washington." While the hospital is conducting no formal study into possible Thermo-Lag poisoning, "we would be interested in seeing more workers with complaints who were exposed," Heyer said. As a result of documentation from his case, Stultz says he now can claim workmen's compensation pay ments. But others might not be able to do so until the Thermo-Lag issue is fought and won, said Schilling sill " 8*f 'Is! IItm9i OZeg product," although certain states. CAP CO JEN 0013099 t Asbestos j^ccorid Faces Obstacles r l- Copies of the proposed plan have --t By John Riley. , ; * .;; . .. ' ` been sent to about 200 major insurers Nattm,.* j4tnul Sufi Rnwrtrr "V--."' >' and asbestos producers, who have been. ~ ; asked to subscribe .conditionally by .. Appearing at a May 18 press confer ence, Mr. Shea and James J. Restivp of Pittsburgh's Reed Smith -Shaw k ' McClay, who represented the Pitts' burgh Corning Co. in the negotiations, MAJOR asbestos producers sad Insur ers have unveiled an unprecedented accord to settle years of Internecine legal conflict and establish a "onestop'* claims facility for speedy compens&liow of asbestos victims. The May 18 public announcement of the agreement climaxed 19 months of complex negotiations among represen tatives of 16 large asbestos producers and 12 leading insurers. --~' July 18./.. - .v -.. -- ``Many have been'reluctant until-, they see more details." noted John F. Shea, vice president and claims coun sel for Aetna Life and Casualty Co. and the head of the insurance industry ne gotiating team... - s- , "The next two months will be very v important," added Claude E. Glaser, Jr- a negotiator for the Hartford'Insur ance Group. stressed that savings in legal expenses would be the key incentive for produc ers and insurers. They predicted a Tnet savings" on litigation costs because the settlement facility will end suits between and among producers and insurers who join; significantly reduce the number of asbestos claims that go to trial or are fettled only on the courthouse steps; and consolidate defense efforts Noting the role that disputes For insurance companies, the major ~ in cases that do go to trial. between those two groups have played concession is an agreement to use the. .Under the plan, asbestos victims will in clogging the courts with more than broadest possible deflnltion'of the submit medical and employment his- 24,000 asbestos claims, negotiators "trigger date" for insurance coverage....,. . tories to the claims facility. If the inju Under the proposed agreement, pro- " ry- is determined to be compensable, hailed the accord as a historic achieve ducers will have the benefit of all poll- "' contributions will be assessed against ment that could make major Inroads on relieving the congestion by settling most asbestos cases out of court. - "If it works, in its first six months this facility could pay out more than the entire Agent Orange settlement," said one negotiator, referring to the re cent $180 million settlement of a class action against producers of Agent Or ange. (NU, May 21.) Before that happens, however, the asbestos settlement faces some major obstacles. cles between the date of first exposure to asbestos and the date an asbestos- ' related disease was diagnosed. - - In litigation, many insurance compa nies -- including Travelers In its suit with Manvllle -- have argued for a narrower. Interpretation of standard policy language, imposing liability only on the policies in force at the time of a victim's first exposure or at the time of manifestation of asbestos-re-. lated disease. ' ; ' Another major issue in asbestos in all producers and passed along to their respective insurers based on the allo cation formulas. The facility will not pay punitive damages, Mr. Shea and Mr. Restivo. said, but will make offers based on the "market" rather than a predetermined schedule of benefits and will employ arbitration mechanismiStp resolve differences. *1 Although victims will not have to . waive their right to a Jury=trial before seeking a settlement offer from the fa It calls on asbestos manufacturers surance litigation has been the "duty to cility, they said, details of when such a and insurers to drop all their litigation - defend." with producers arguing that waiver -- or a waiver of punitive dam against one another over the allocation under standard pre-1966 policy lan ages claims -- may be required have of asbestos liability; make major com promises on legal issues worth mil lions of dollars; and agree to a compli cated formula for dividing up the costa of settling cases with asbestos claim ants under the umbrella of an "asbes tos claims settlement facility." guage an insurer's duty to foot the de?. fense costs in asbestos suits continued - even after a policy's liability limits were exhausted. Insurers have taken the opposite position. __ The settlement cuts a middle'road, upholding the insurance industry posi not yet been resolved. Plaintiffs' attorneys, reacting to the proposal, said that while such details could be important they did not feel the unavailability of punitive damages would be an Insurmountable barrier to settling cases in the facility. The Manvllle Factor So far, however, no companies -- in cluding those that sponsored the nego tion but providing that once a producer exhausts all of its insurance policies the insurers as a group will fund a 45A-9N NATIONAL LAW JOURNAL WEEKLY 32,000 tiations -- have committed themselves "lifetime" defense program. to joining the proposed facility. Two For producers, the agreement calls potentially key participants, the Manville Corn, and Travelers Insurance for two major concessions. They will have to give up all claims against their JUN 4 1984 Co., have distanced themselves from insurers for indemnification of puni the plan. tive damages, and also agree to aggre Manvllle, the nation's largest asbes gate limits on policies that were writ tos producer, entered Chapter 11 bank ten without any such limits. ruptcy proceedings in August 1982. Its In addition, asbestos producers join insurance disputes with Travelers, ing the facility will have to agree to settle their disputes with one another currently the subject of a $600 million over how liablllty is to be allocated in lawsuit in San Francisco, were one of the triggers for that filing. In re Asbes tos Insurance Coverage Cases, Coordi situations where a victim was exposed to asbestos produced by more than one company. Typically, lawsuits name 15 nated Proceeding 1072 (San Francisco Superior Court). (NLJ, May 7.) or more defendant producers. Rather than adopting a "market The draft agreement for the insur share" approach, the agreement allo ance claims settlement facility began cates liability among producers based circulating last week. Spokesmen for on a formula derived from its past both the insurance and producer nego claims experiences and the number of . tiators conceded that, while participa pending open claims. tion by Manvllle and Travelers is not essential, the plan will work only if a substantial number of key players on both sides agree to the major compro THE WALL STREET JOURNAL Friday, June 22. 1984 "These darn antibiotics are ruining the environment!" mises required by the plan. CAP CO JEN 0013100 W&jk -i GSA fc BattlingW)rker H^tena' About Asbestos ' ,. ...GSA begmi studying way* to dk-'::i. lowtnment workers 6m Daapite the confficting hterature ] I^T-'rj -r-rBeeltsotores dinaI9n6a0ti;onawndideinsMurtryey19B8s3thty.t#S%~;fe ' ' on what txpnsure, constitute* safe levels of ] most GSA offidik say ad-j i3f public bunding, tost hsidtoa^SS'^--aetific tad medical evidence has > mbit severe potential asbestos prob-*' . shown that three potentially fetal lim*. And, senior GSA offieiih mid, *r9 V disease* can result 6m asbestos: . ; to) fife-threatening cooditicos would_' asbectoak; cancer of the lung, tra- ; hs allowed to remain in any govern- ' ,,v<` dtea m brooehial tube; and mesothe OJ I^jUb SmoCK In Modi, the Justice Departmenf* senior : safety official wrote to the General Service* -. Administration expressing concern' about the. asbestos ceilings that were flaking in the de-' partment'a offices in the Safeway building. (, More than 400 Justice employe* work in' the building at 621 12th St NW. And, Jo- f mactowaed. or federally; lewd' ;.j-T5r lat^.GSX^lSt'ri^W^ -V - that toe problems were grossly owsr*. ... stated, tost all airborne aabactotkv-i <'-/ . akarewefl below artim*!st*nKl*^*!i7 " ' aet by the Occupational Safety and . ; / - Health Adminktretioe, and that y-; .. kcg-nhge plan will suffic* to pro-. - ' lioma, cancer ofthe lung membranes " and abdominal cavity. At toe tame tone, they lay asbestos lerek in gov ernment buildings meet OSHA stan dard*. ' " .7 To combat the perceived fear, ; GSA k planning `a public relations ' campaign,* according to Public , Buildings . Commissioner Lester L. ' Mitchell . eph A. Sanchea wrote to Jamea G. Whit lock, GSA public buildings commissiooar, "concern for the safety of our employ** . hat been one of our highest priorities* - How much, Sanches wanted to know, would it coat to seal off or encapsulate, the asbestos; how soon could the GSA contract fix the work, and when could it be com pleted? GSA said that there were no plan* to en capsulate or remove the asbestos because of plans to move out of the building in a year or so. Moreover, GSA officials strewed, to ffie apparent satisflcation of senior Justice officials, employes in toe Safeway bunding face no danger. - The incident GSA officials say, is typical of the uphill battle they fight sgainst tbs teal ' . tect government werkaa 6m to* .,: danger* of crumbling^ damped and' water-logged asbestos. -.!>;; - "There is not one building nation- -7 wide that wa have to do anything "'about,* Chaffine Keith, a t. . Public Buildings Service staff mem- - ber.`The (am sampling] readings fer " asbestos particles everywhere are so .,. low that there k no need to warty*."I" . ,, But, In precautionary mom ':. .. GSA has rammed or encapsulated.-', aabestoa in five of the 36 buildings.:' - Asbestos in five others will be taken' .. care of this year, and one building . - will be dealt with m 198ft -<-- GSA plans to spend the bulk of a !-- J20L6 minimi budget for fbuttoa removal and encapsulation projects "What needs to be emphasized most forcefully,* Mitchell said, "k that there are no dangers at ail to federal employes working in federal office buildings, based on the stan dards set by OSHA." "We could say we hare a safe an. vironment and we're going to laave it [aabestoal alone, but'that's not what we're dang," Lawsonpaid. "W* have a major communication! woblem that k causing ectymea to oe fearfid of their work erri&nment* . - Tf people want to get emotional. about asbestos, that k a problem as "'much as the asbestos,* added Mitch- dl Tt k as much our respoosMity to communicate to them why it k and imagined fears about asbestos in the government work place. `Like many letters, this one reflects a de gree of hysteria that we have to face and dad with,* said Whitlock. "Since then, we have been sbfe to assure Justice that no em ployes working in the Safeway building face any dangers whatsoever from eabestoe. We are not going to encapsulate or remove toe aswstoe because we plan to mom'. out of the building in a year or so.*, *We are using whatever reaource* * we have at our disposal to dispel the fears that employes have and to cor rect potential problems associated ' in fiscal 1986 through fiscal 198ft- Generally, GSA safety officials ; have discounted scientific evidence .. indicating that even low-level expo- 4" sure to airborne asbestoeportidc*, a* ... n<-.: in toe work piece, for example, can be .dangerous. The National Re- search Council, an arm of the Na tional Academy of Science, released a study in February showing that. ! low levels of- aabestoa can causa '** flippy * v However, Lawson said, the GSA it guided by a 1982 survey of aabestoa- related literature by toe UR Geo- with asbestos,'said WiHismR Law* son, GSA's assistant commissioner_ . for design and construction, "ft is'- most important to have a program to . combat toe fear people have. People haw to believe that it'k sale. That means prudently spending some tax payers' dollars ana incorporating a - capital program that it logktl and sensible.* .... - 'Asbestos, widely used as a fire- proofing agent and insulator in com- - mferdal office buildings, was harmed' in 1972 because scientific evidence showed that certain types can cause cazicer and a number of hmg tad respiratory diseases. logical Surrey, an' agency generally ivv ?r " responsible for mapping and mineral research. According to that atady,. <>:. the 'common white asbeatoaT .that . ' hi. jr.. .- - generally k used in insulation and ' fireproofing federal building* "has" had the least effect on those octu- patianaQy exposed. There is no er idence that toe very frequent non-' " occupational exposure'to this form " of asbestos has caused any harm.*' ' Noaoccupational exposure . occur* when a person enters or peaees by * ixifiding with asbestos. * ` ' - s+-., M*>U*y. Juju 4.1984 THE WASHINGTON POST safe, at it k to make the building* aafa.*-' . .. Meanwhile, some asbestos-related work in the Washington area baa. been postponed because of budget, problems, contracting delays and the need for other nonasbestoe-related work, according to Commissioner -Whitlock.- A project to remove aabestoa from three elevator lobbies in Federal Of fice Building 2 in Arlington will not be completed until May 1986, even though GSA safety officials said in 1983 that the asbestos k `exposed . and accessible* to pedestrian traffic. Aabestoa removal from the lobby of the National Courts Building in Washington k scheduled to be com pleted in November. But no contrac tor baa been hired for the cleanup, which originally waa to be completed this month. And at the 160-year-old' Tariff Building, a 3250,000 asbestos remov al project has been shelved because of legislation pending in Congress to transfer the building to the Smith sonian Institution. CAP CO JEN 0013101