Document ZJogBDdxoqxmGkre3X651ajdZ

OFFICE OF COMMISSIONER STATE OF CONNECTICUT ATTACHMENT 1 DEPARTMENT OF HEALTH SERVICES July 10, 1981 Brandon Hickey, Esq. Murtha, Cullina, Richter, and Pinney 101 Pearl Street Hartford, Connecticut Dear' Mr. Hickey: I have enclosed a copy of the proposed Memorandum of Decision of the hearing panel on asbestos cement pipe. Pursuant to Section 4-179 of the Connecticut General Statutes, you may file any written exceptions and/or briefs by July 24, 1981. 1 am also scheduling a meeting on July 30, 1981 at 9:30 a.m. to provide you an oppor tunity to present oral arguments in this matter. Please notify ray office if you would like to change the time of the meeting. Sincerely yours,- DSL:mlp Enc. Douglas S. Lloyd, M.D., M.P.H. Commissioner Telephone 79 Elm Si. Hartford,, Ct. 06115 An Equal Opportunity Employer CAPCO JEN 0033127 Re: Declaratory Ruling on Health Hazard of Asbestos-Cement Pipe Report of Hearing Officers MEMORANDUM OF DECISION BACKGROUND Public Act 80-398, Section 2 states the following: "On and after October 1, 1980, no person, firm, corporation or municipality may install any asbestos cement pipe in any water supply system until the Commissioer of Health Services determines that the use of such pipe in water supply systems does not create a public health hazard." This Act has placed a ban on the installation of as bestos-cement (A-C) pipe in Connecticut until the Commissioner of Health Services finds that the use of such pipe is not hazardous' to the public health. An application for declaratory ruling pursuant to Pub lic Act 80-398 was received on-August 5, 1980 from Certain-Teed, Inc. and Johns-Manville Sales Corporation. The applicants re quested that the Commissioner determine whether the use of A-C pipe "in water supply systems does not create a public health hazard." The undersigned members of the Department of Health Services were appointed by letter dated October 24, 1980 to serve as a hearing panel. CAPCO JEN 0033128 2- - Dr. Stephen 'Havas is the Chief of the Bureau of Health Promotion and Disease Prevention. Dr. Havas is a board certified internist. He holds two public health degrees from Harvard School of Public Health; one is a Master of Public Health and the other a Master of Science in Health Policy and Management. Anthony V. Sardinas is the Director of the Preventable Diseases Division. Mr. Sardinas holds a baccalaureate degree in microbiology, a masters degree in allied health, a masters de gree in public health (MPH) and is completing a doctoral degree in public health (DrPH). Both the MPH and DrPH are from Yale University and are in public health administration and epidemiol ogy. Richard S. Woodhull is the Chief of the Water Supplies Section. Mr. Woodhull has a baccalaureate degree in engineering from Tufts University, a masters degree in sanitary engineering from Harvard and is .a licensed professional engineer in Connecti cut. Following the issuance of a notice of hearing dated September 12, 1980, and publication of said notice in the. Connec ticut Law Journal on September 23, 1980, a hearing was held in the State Capitol oh October 29 and 30, 1980 to receive evidence in this matter. Certain-Teed, Inc. and Johns-Manville Sales Cor- . "t -XT-1 I- I CAPCO JEN 0033129 cc -3- poration were admitted as parties. Intervenor I status'allowed an individual or group the.opportunity to appear before the panel, provide testimony, examine witnesses, cross-examine witnesses produced by the parties and other Intervenors I, and to file a brief. This status was granted to Citizens for Clean"Water, which was represented by Attorney Daniel Millstone, Litigation"Director of the Connecticut Fund for the Environment. Eleven individuals were granted Intervenor II status. This status allowed an individual or group to appear before the panel and make or submit a statement for the record, but did not subject to or allow that individual or group the opportunity for cross-examination by an Intervenor I or any of .the parties to the proceeding. A large number of reference documents submitted by the panel and by witnesses were noted for the record. FINDINGS OF FACT 1. The materials used to produce pipe for the trans mission of drinking water in Connecticut include ductile iron, steel, polyvinyl chloride, concrete and asbestos-cement. 2. Asbestos-cement pipe is composed of asbestos fibers and cement. CAPCO JEN 0033130 -4- 3. Asbestos fibers have been found in Connecticut in drinking water carried by asbestos-cement pipe. The fibers are released from the pipe into the water because of the corrosive effect that certain substances in the water have on the pipe. This process may be slowed considerably but not totally elimina ted. 4. Asbestos ingested by animals migrates from the digestive system of such animals to other organs in their bodies. 5. To date, animal studies concerning the effects of ingestion of asbestos fibers in water are equivocal'. There are data indicating increased malignant tumor formation in rats which ingest asbestos. Other studies have not found any increase in malignant tumor formation. 6. The inhalation of asbestos fibers can cause a lung disease in' humans known as asbestosis, a severe type of chronic obstructive lung disease. 7. Asbestos is a known human carcinogen. Individuals who have been occupationally exposed to asbestos fibers have an increased incidence of cancers of the lung and gastrointestinal tract as well as the linings of the lungs and abdominal cavity. It is not yet knownwhether the gastrointestinal cancers result from swallowed asbestos or inhaled asbestos which has been car ried through the bloodstream to the abdominal area. *n l CAPCO JEN 0033131 8. Some epidemiologic data indicate that the inges tion of asbestos fibers occurring in drinking water can increase the risk of cancer of the lung, peritoneum, pancreas and gall bladder in humans. such cancers. Other studies have not found any increase in 9. The risk of developing cancer increases substan tially as the level of exposure to a carcinogenic substance in creases. However, the existence of a safe (threshold) level for exposure to a carcinogenic substance, below which no excess can cer is produced, has never 'been proven. DISCUSSION 10. Information presented by the intervenors and some scholarly works entered into the record establish that humans ex posed to airborne asbestos in the work place develop cancers of the lung, gastrointestinal tract, and the linings of the lungs and abdominal cavity at a much higher rate than the general pop ulation. Individuals exposed to asbestos in the work place also frequently develop asbestosis, a severe chronic lung disease. This disease is never seen in individuals who have not been ex posed to asbestos. . 11 CAPCO JEN 0033132 6- - 11. The applicants argue that the results of work. . place studies involving high level asbestos exposure are not relevant to the issue presently before this hearing panel. They claim that asbestos fibers in drinking water transported by A-C pipe are not hazardous to health because of their comparatively low levels of occurrence. This implies that there is a threshold level of asbestos exposure which, if exceeded, will result in human disease, but below which there is no ill effect. It is the opinion of this panel that no such threshold level has yet been shown for carcinogenic substances. If a substance causes cancer at one level of exposure, one can still expect cancer at a re duced rate at lower levels of exposure. Exposure to a carcino genic substance must be entirely eliminated in order to avoid all risk of cancer. ' 12. Laboratory studies on the health effects of feed ing asbestos to animals are equivocal. Several studies using a small number of animals showed no adverse health effect to ani mals ingesting asbestos. Other studies demonstrated tumor forma tion in animals exposed to asbestos. The conflicting results, of such studies make it difficult to draw support for the thesis that asbestos is or.is not hazardous to the public health. How ever, the fact that asbestos that is ingested by animals migrates ui ii CAPCO JEN 0033133 t from the digestive system to other body organs suggests that the potential effects of asbestos can occur at those other organs. 13. The applicant suggests that preliminary data from .a massive feeding study sponsored by the United States En vironmental Protection Agency is adequate to support the hypothe sis that ingestion of asbestos in drinking water has no adverse health effects. Such data is of no assistance to this panel since it is not published final data which has withstood peer review. 14. Evidence was presented which showed that water passing through A-C pipe may be contaminated with asbestos fibers from the pipe. The release of asbestos fibers may be slowed by chemically treating water passing through the pipe, thus reducing the corrosive effect of the water. 15. There was a great deal of testimony during the hearing concerning epidemiologic studies that deal with the pub lic health hazards associated with drinking water containing asbestos fibers. Expert witnesses called by the applicant testi fied that in their opinion these studies indicated minimal risk to the public health. This position is not accepted by the panel. 16. The applicants have requested a declaratory rul ing pursuant to Public Act 80-398. The Act allows the Commis- ! ;| I r . ----- - -------------------- > ' CAPCO JEN 0033134 I l; -8- sioner of Health Services to make a determination that the use of A-C pipe in water supply systems does not create a public health ' hazard. It is the opinion of this panel that there is not suffi cient data to support such a determination. There is sufficient question as to the effects of the oral ingestion of asbestos that we cannot at this time say that A-C pipe does not present a pub lic health hazard. Alternative pipe which presents fewer poten tial hazards is available and should be used. HECOMMENDED DECISION It is recommended that the applicants' request be denied at this time. Date Stephen Havas, M.D. Anthony V. Sardinas Richard S. Woodhull CAPCO JEN 0033135 y STATE AGENCIES Aucn evidence, and there \m ut> other evidence supporting auaponslon of iaotorjflt"# driver's licenae, admlaaloa of Huch evidence aubat&stUHy prejudfced motorist, and motorist'* appeal from suspension waa properly auztalced. Id. s. Workman'* compensation Procedural doe proceas Ja a require ment of adjudicative administrative' v.-oring*. including those held before workmen's compensation commissioners, md the admission of hearsay material vithout an opportunity to cross-exam*ie is ordinarily a deprivation of proceural due process. Balkua v. Terry team Turbine Co. (1974) 85* JL2d 217, 7 Conn. XtO. . Board of education In action by nontenure^ teacher for sndamus to compel board of educam to retain teacher as certified em* ;>yee, teacher failed to sustain her -rden of proving that board of educa*n' alleged violation of applicable .itute gave her "clear legal right** to Instatement. Light . Board of Ed. of wn of Lebanon <1975) 394 A.2d 229, * Conn. 35. Town board ot education wan, with ;*rd to matters not Involving strictly Jgetary concerns, & "state board** :hln statutory provision of I 4-J66 .t term "agency** within Uniform Addstratlve Procedure Act means "each ;e board * * * authorized by law * to determine contested cases.** rphy v. Berlin Bd. of Ed. (1974) 555 * - 167 Conn. 568, Jinary proceedings .* a party appeals pursuant to ctlonal grant of Uniform Admln,,:lve Procedure Act, agency action measured by standards contained in that Act, and appealing party burden of proof in challenging fed erative action. Lelb v. Board of ninera for Nursing of State of i. (1979) 411 A.2d 42, 17? Conn. 78. indfird of relevance governing pro ngs at agency disciplinary bearing t by the complaint as propounded tlce of charges provided by agency. 'by v. Berlin Bd, of Ed. (1974) 355 265, 167 Conn. 568. *t board of education was "auced by law to determine contested *' within statutory provision that "agency** within Uniform Adminlve Procedure Act means 4`each board authorised by law * to determine contested cases," :lpllnary proceeding in Which town of education decided not to dis MANAGEMENT OF STATE AGENCIES 4-179 miss teacher but placed her on probation for 12 months and frose her salary was a "contested case** within statutory pro vision that term "agency** within Uni form Administrative Procedure Act means "each state board au thorized by law to determine contested cases.** Id. 9. Notice requirement Where notice given to teacher only referred to her conduct with regard to certain student, where town board of education made findings that teacher hod lack of sympathy and understanding of problems of students of average and below average ability and failed to carry out and pursue channels available for students p&rtlclpatlngln "Work-Experi ence Program** and where board's deci sion to place teacher on probation and freeze her salary was based in part on such findings, board had not complied with notice requirements of Uniform Ad ministrative Procedure Act or with Act's requirements that findings be based on matters officially noticed and that Irrel evant evidence be excluded, Murphy v. Berlin Bd. of Ed. (1974) 555 A.W 265. 167 Conn. 568. 10. Documentary evidence Photostatic copies of abstract of the record ot defendant's conviction in Maine for traffic violation and notice of suspension of right to operate motor vehicle tn Maine forwarded by Maine officials, were admissible at adminis trative hearing on revocation of motor ist's operator's license. Hickey v. Com missioner of Motor Vehicles (1976) 565 A.2d 403, 170 Conn. 136. Documents giving notice of conviction of traffic violation, forwarded by state In which violation occurred, need not be formally exemplified (o sustain the suspension or revocation of operator's license by the home state. Id. 11. Parole release hearings There Is no statutory requirement that parole board determine eligibility for parole of any particular prisoner, and thus parole release hearing is not a "contested case** to which provisions of Uniform Administrative Procedure Act apply, so that procedures which such Act requires for "contested cases." which procedures exceed the minimal procedural safeguards mandated by due process clause, are not statutorily re quired at p&role release hearings. Tay lor v. Robinson (1976) 572 A.2d 102. 171 Conn. 691, 12. Motor vehicles--Coroner's report Failure of coroner to submit certified copy of report of Investigation ot auto mobile accident was not fatal to exhib it's admissibility in hearing held by commissioner of motor vehicles on sus pension ot motorist's license since the objection was not raised at the hear ing. Lawrence v. Kozlowskf (1976) 372 A.2d 110,171 Conn. 705, certiorari denied $7 S.Ct. 2930, 431 U.S. 969, 53 L.Ed.2d 106$. 13. Witnesses Failure of commissioner of motor ve hicles to subpoena three witnesses sought by motorist at hearing which resulted In suspension of the motorist's driver's license did not contravene the Uniform Administrative Procedure Act nor the motorist's constitutional rights. Lawrence v. ZCozlowskl (2976) 372 A.2d 110, 171 Conn. 705, certiorari denied 97 S.Ct. 2930, 431 U.S. 969. 53 LEd.2d 1066. 4-179. Proposal for decision. Procedure. Waiver When In a contested case a majority ot the officials of the agency who are to rentier the final decision have not heard the case or read the record, the decision, If adverse to a party to the proceeding other than the agency Itself, shall not be made until a proposal for decision Is served upon the parties, and an opportunity Is afforded to each party adversely affected to file exceptions and present briefs and oral argument to the officials who are to render the decision. The propos.il for decision shall contain a statement of the reasons therefor and ot each Issue of fact or law necessary to the proposed decision, prepared by the person who conducted the hearing or one who has read the record. The parties by written stipulation may waive compliance with thlB section. (1371, P.A. 854,114, elf. Jan. 1,1972.) Library references Administrative Law and Procedure e=>K. C.J.S. Public Administrative Bodies and Procedure | US. 199 r i i :i CAPCO JEN 0033136 Law Offices SCII.VADKU, IlAKKtSOX, SKOAL & I-KW1S 1719 Packard Building Philadelphia. Pennsylvania I9IOH ,1 215-900-2000 cable: walew TELEX: 03-^200 July 14, 1981 ATTACHMENT 2 'r WASHINGTON OFPICE mi ninctccnth stect.n.w WASHINGTON. O. C.2003S 202-^03*2900 TO: FROM: RE: MEMBERS OF THE EXECUTIVE COMMITTEE ARTHUR KAHN STATE OF CONNECTICUT As you are by now aware, a hearing panel consisting of three officials of the Connecticut Department of Health Services has issued a proposed "Memorandum of Decision" deny ing our application for a determination that A/C pipe does not constitute a "health hazard." Such a determination by the Commissioner of the Department of Health Services is re quired to lift the moratorium on the use of A/C pipe imposed by the Connecticut statute enacted in mid-1980. The proposed decision is extremely unfavorable, not only in that it would deny our request but also in regard to some of the statements contained therein regarding the dangers of ingested asbestos. Vie have discussed with Brandon Hickey, our Connecti cut counsel, various alternatives available to us at this junc ture. I shall outline the three general courses of action that appear to be available to us. We must make a decision rather promptly since, at least with respect to two of the possible courses of action (the two that we believe to be worth serious consideration), we must act within the next few weeks. CAPCO JEN 0033137 SCHNADER, HARPtSON, SEGAL & LEWIS -2-' The procedural posture is that the hearing panel has forwarded the proposed decision to the Commissioner of the De partment of Health Services, and we now have an opportunity to take exceptions to the proposed decision. Based on the present schedule, we have to submit written exceptions (if we choose .to do so) by July 24. A hearing before the Commissioner on the exceptions is scheduled for July 30. Thereafter, the Commissioner will either adopt (as proposed or as he may modify it) or reject the proposed decision. I have requested Brandon Hickey to obtain an extension of the date for filing exceptions and for the hearing to allow us additional time to decide what action we are going to take and to prepare exceptions should we decide to file them. I do not know if Brandon will be successful in obtaining an ex tension. As we see it, generally speaking, there are three courses of action available to us. Of the three, we believe we can easily eliminate one as not being feasible. However, we shall discuss it briefly at the outset. The three possibilities are as follows: First, we can do nothing. If we were to take this approach, it would, in effect, constitute acquiescence in the proposed decision, which would, undoubtedly, be adopted by the Commissioner. The only possible advantage to`be achieved by this course of action would be to save the money involved in preparing and arguing the exceptions (which Brandon Hickey estimates at $5,000), on the basis that this will be a wasted effort and that * :l TK1 CAPCO JEN 0033138 T , Harrison. Segal a Lewis -3- the Commissioner will adopt the proposed decision, in any event. Nevertheless, it does not seem to us to be a considered approach, in effect, to acquiesce in the decision proposed by the panel without taking exception to it. We believe that from a public relations point of view, as well as from a legal point of view, this approach is unacceptable. Second, we can prepare, file and argue exceptions to the proposed decision. This would be the way we would proceed in the ordinary situation. However, we do not believe there is any reasonable likelihood that the Commissioner will reject or significantly modify the proposed decision. The next step would be to appeal to the Connecticut Superior Court. The cost of such an appeal is estimated by Connecticut counsel as being approximately $15,000 (this does not include the time of Schnader, Harrison, Segal & Lewis). With respect to an appeal, we share the view of Connecticut counsel that there is little like lihood that the court would reverse the Commissioner of Health Services as being arbitrary. We would be relegated to trying to invalidate the statute on the grounds that it lacks adequate standards and, consequently, is invalid. The assessment of Connecticut counsel (which we share) is that we have perhaps a 20% chance of prevailing on the appeal. Third, we can withdraw our application. We would have to draft a carefully worded statement indicating that, in view of the pending animal feeding studies, etc,, rather than press the matter at this time, we will await the outcome of these and other studies, at which time we would then hope to convince the IT I CAPCO JEN 0033139 Schnader. Harrison, Segal a Lewis 4 Commissioner that the moratorium should be lifted. The advantage would be that we would not be faced with a decision of the Com missioner that could be used against us elsewhere. While the proposed decision may still be cited in proceedings in other jurisdictions, etc., it might be less damaging than an opinion by the Commissioner, which has been affirmed by the Connecticut courts. In addition, we would probably save $20,000-25,000 in further costs incident to proceeding before the Commissioner and in the state courts. Since we see little likelihood of reversing a decision by the Commissioner, if we proceed it is likely that we will end up with an adverse opinion by the Commissioner which might carry greater weight than the proposed decision. Although we could continue to say for sometime that the matter is in litigation, I'm not sure that this would be of much help in the face of a ruling by the Commissioner. To reiterate, the proposed decision of the panel will still probably be used .against us elsewhere,. but it may be less harmful than a final decision by the top health official of the State of Connecticut. Furthermore, we have to re-examine our purpose for filing the application in the first instance. Counsel for the - companies decided to file the application, based on a number of considerations. Apparently, they felt that there was a good chance of getting a favorable opinion from the Commissioner or of overturning the Connecticut legislation, and, further that this .\ might discourage the enactment of similar legislation in other states. l~ 1 CAPCO JEN 0033140 A.OER, Harrison,Segal. & Lewis -5- We now find that we will not much longer have a market on the east coast. Moreover, in over a year, we have not seen any significant efforts by other states, other than the State of Massachusetts, to adopt similar legislation. It is now the assessment of local Connecticut counsel, which we share (and which has been our view from the beginning) that there is very little likelihood of obtaining a favorable opinion from the Commissioner and little greater likelihood of obtaining a favor able decision in court. Consequently, we see little to be gained from pro ceeding: (1) it will cost a substantial amount of money; (2) we will gain no significant advantage as a result of keeping the proceedings (in state court) going for another year or two since the adverse parties in proceedings, etc., elsewhere are not likely to be dissuaded from citing the decision of the Com missioner even though an appeal is pending; (3) we will be faced with a decision by the Commissioner of the Department of Health Services of the State of Connecticut, rather than by a proposed "Memorandum of Decision" by a hearing panel; (4) ultimately, if we are correct, the Commissioner will be affirmed by the Con necticut courts, which will most likely uphold the Connecticut statute; and, finally, (5) we will have achieved no significant psychological or public relations advantage, so far as we can see. The basic questions are, as we see them, (1) whether we are better off during the next year and one-half to two years i CAPCO JEN 0033141 Schnaoer. Harrison, Scgal 8. Lewis tT 6- - with (a) a proposed "Memorandum of Decision" by a "hearingJpanel or (b) a final decision of the Commissioner of the Department of Health Services of Connecticut (the top health official of the state and the person charged by the statute with responsi bility) which is in the process of being appealed, and (2) there after, whether we are better off with the proposed decision or with a decision of the Commissioner that has been affirmed bythe Connecticut courts. You should also keep in- mind the cost of proceeding on the one hand, apd the chance, although remote, that the Commissioner will reject the proposal of the panel (or that the court will reverse the Commissioner) on the other hand. 1* I 'H *rt I CAPCO JEN 0033142 I i ATTACHMENT 3 3oA 2Tc=3 ao. _ stt ,2oEo*>gs*jooc SsS `guf-aS *u 2~ j c ! INIs s C <B~ , bo |>5cT*f L.'S Oui -CZ? 2 S| S Ja3g-<S9 sto ' 5..*32 5 ^S.S2S 2mc P*ofc. ?63 --gcg M*g:5 "5g r? 3 = 3 -- I" " ! a| r.g |.s ; o |2 a . iT-oj ou <3- **z*i~it ^ gS a ... e - m- _n -o i0f-.*f3 S.2.3 S2g>ge s>s^uf*3s**; *i; a wv )*Q 2 = S g 5 o~ K>9c*o.2swe*rS: 6 5- ; 2o 5= b3 - \ ** i II CAPCO JEN 0033143 A A/C Pipe Messrs. Producers Association Public Affairs Committee T0 International Affairs Committee p -------- ---------- - oC_y J- F. Welch, Director, Public Affairs SUBJECT Field Problem - Black River Falls, Wisconsin' ACTION REQUIRED: Review for Information -Whlfcl-ey., W. H^&eaTsley, . L&fshock, t . | ^ 5-4-81 Internal Correspondence date April 29, 1981 On April 8, 1980, Staff contacted Gary Logsdon (Environmental Protection Agency - Municipal Environmental Research Laboratory) for routine follow up. During the course of our conversation, Logsdon revealed that approximately 6500 feet of A/C water pipe at Black River Falls Mission (Indian reservation), Black River Falls, Wisconsin was being removed as a result of extensive interior corrosion. The line is to be replaced with PVC pipe. According to Logsdon, the 4 inch line was installed approximately 12 years ago by the Indian Health Service. Source waters are from two local wells which are chlorinated and fluoridated prior to consumption. Water quality data follow: pH Alkalinity Calcium hardness WeU 1 6.3 20 14 WeH 2 6.6 20 17 EPA's analysis of water quality indicates that the pH is closer to 4.2, alkalinity -0.42, and calcium hardness 7.0. This approximates an Aggressive Index of 5. I Contact for the project is Larry Gaynor, P.E., Indian Health Service, Rhinelander, Wisconsin (715/362-5145). AACPP Action Plan 1. Staff plans to contact Gaynor prior to and during a fact finding trip to the State. If you have any questions, please do not hesiate to call. JFW/ajb cc: A. Kahn, Esq. N. Rahn, Esq. CAPCO JEN 0033144 copies to: Public Affairs Committee H. Olson I. Adams B. Cook W. Perrell J. Woods J. Baker T. Dougherty D. Stinson W. McCallie International Affairs Committee R. Dorner E. Van Der Rest B. Giboin R. Hobbs C. Walters A. Saoulis R. Jalan V. Pattabhi H. Hudson C. Barton S. Al-Tarkait E. Costa FP/1 Chrono CAPCO JEN 0033145