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In Memoriam: Philip A. Harley 1947-2009

Philip A. Harley On July 2, our beloved friend and partner passed away peacefully at home with his husband, Mark Kalend, their four year old twin daughters Sara and True, and Phil’s mother and brothers. He came home from the hospital on July 1, and had the final opportunity he so badly wanted – to be with his loved ones and say good-bye in their own home. His illness began six weeks ago, with the sudden onset of what proved to be an extraordinarily aggressive form of malignant melanoma. He fought with his usual grace and courage, but even Phil couldn’t win this last trial. We will miss him terribly, but will remember him always.

Plans for a memorial celebration of his life are pending.

Libby, Montana – Health Emergency Declared June 17

The Environmental Protection Agency has declared a public health emergency in a Libby, Montana, a town contaminated by asbestos from a vermiculite mine. Hundreds of miners, their family members, and community members have died, and thousands have been sickened from exposure to the asbestos-containing ore. The announcement was made today at a joint press conference with Department of Health and Human Services Secretary Kathleen Sebelius and U.S. Senators Max Baucus and Jon Tester. This is the first time the EPA has made such a declaration under authority of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) that conditions presented a significant threat to public health.

This will not result in an evacuation, but will require an extensive cleanup and better health protections for residents with asbestos-related illnesses. The EPA is working with the Department of Health and Human Services, which is making available a $6 million grant to provide asbestos-related medical care to Libby and residents of Troy, another Montana town. The Libby mine was the source of over 70 percent of all vermiculite sold in the United States until it was closed in 1990.

International Agency for Cancer Research

Twenty-seven scientists from eight countries met at the International Agency for Cancer Research (IARC), part of the World Health Organization, last month to reevaluate substances, including asbestos, suspected of being carcinogenic to humans. IARC is an intergovernmental agency whose mission is to coordinate and conduct research on the causes of cancer in humans. IARC conducts epidemiological and laboratory research and disseminates scientific information through a series of monographs on the cancer risks to humans posed by a variety of agents.

IARC reconfirmed that all forms of asbestos cause lung cancer and mesothelioma and decided there is sufficient evidence that asbestos causes laryngeal cancer and ovarian cancer. Additionally, there is limited evidence that asbestos is involved in colorectal cancer, as well as cancers of the pharynx and the stomach. Minerals such as talc and vermiculite that are frequently contaminated with asbestos were also regarded as “carcinogenic to humans.”

According to IARC, “Identifying the causes of human cancer is the first step in cancer prevention. National and international health agencies can then take action to reduce avoidable exposures to cancer-causing agents. Individuals, too, can use this information to make better choices that reduce their exposure to carcinogens and their risk of developing cancer.

“Differences in cancer incidences in developed and developing countries suggest that many kinds of agents can contribute to the occurrence of cancer. These include chemicals, complex mixtures, occupational exposures, lifestyle factors, and physical and biological agents. Scientific advice that is credible, authoritative, and impartial can greatly aid efforts to reduce the global burden of cancer.”

The review of human carcinogens will be published as Part C of Volume 100 of the IARC monographs.

Asian Asbestos Conference, Part Two

In the April 14 entry below, I summarized the scope of this month’s conference in Hong Kong and mentioned my presentation during Plenary Session 2. I was particularly pleased to be invited to also give a two-hour workshop that same afternoon titled “Break-Out Session 1 – Filing Asian Claims with U.S. Bankruptcy Trusts.” During this workshop, it is my hope that I will be able to teach representatives from non-governmental organizations, local victims’ groups, local industrial and trade union groups, and other community representatives, as well as local attorneys from throughout Asia, enough about the structure and procedures of the U.S. Bankruptcy Trust Funds to enable them to comfortably undertake the representation of Asian asbestos victims without the need to hire and pay American lawyers. I have long believed that it makes more sense for this work to be done locally and not by American lawyers – I said as much at the International Mesothelioma Interest Group conference in Amsterdam last year and I continue to believe that today. During that two-hour presentation, I will explain the organization and structure of the bankruptcy trusts and how the claims process works. Using the Babcock & Wilcox Asbestos Trust as a model, I will walk the attendees through the claims criteria and go step by step through the Proof of Claim form, explaining in detail how the forms have to be completed and how the necessary information can be obtained. Attention will be paid to using Trusts’ approved site lists and ways to establish responsibility at sites that are unlisted. I will include a brief introduction to researching the history of ocean-going vessels and where to find information about asbestos exposure. I will also discuss how to establish the various elements of economic and non-economic damage that go into the process of valuing claims.

It is my hope that at the conclusion of this workshop, those in attendance will have developed a sufficient comfort level to begin the process of preparing and submitting Trust claims for asbestos victims in their communities.

HB Kazan on Trusts

Asian Asbestos Conference, Part One

On April 25, 2009, participants from four continents will convene in Hong Kong at this year’s largest international asbestos meeting, the Asian Asbestos Conference. The conference is sponsored by the International Ban Asbestos Secretariat, the Building & Woodworkers International, and three groups based in Hong Kong – the Asia Monitor Resource Center, the Association for the Rights of Industrial Accident Victims, and the Hong Kong Confederation of Trade Unions.

As our readers will well understand, it makes great sense to hold a meeting in Asia, which has been a major focus of recent publications seeking to address the local asbestos problems including Killing the Future, a monograph detailing the depth and breadth of problems throughout Asia, and India’s Asbestos Time Bomb, a collection of scholarly articles and reportage on the specific problems being experienced in India, which was published last September in Mumbai and at the International Mesothelioma Interest Group seminar in Amsterdam.

Currently, Asia consumes more than half the raw asbestos fiber used throughout the world, almost always in industries and applications without appropriate safeguards for workers and for exposed end-users and residents. Unless something is done, and done soon, we are planting the seeds for a continent-wide epidemic of mesothelioma and other asbestos diseases which will start soon, peak around 2025, and last well into the second half of this century.

As Laurie Kazan-Allen, Executive Director of the International Ban Asbestos Secretariat, said,

“… in Japan, thousands of cases of asbestos-related disease have been diagnosed amongst former asbestos workers, railway workers, schoolteachers, insulators and local residents. In Korea, the incidence of asbestos-related disease is also on the rise. There is no question that India, Thailand, the Philippines and other Asian countries will also experience increasing mortality from the avoidable diseases caused by asbestos.”

I was delighted to be invited to make a presentation at this conference on “Transnational Claims: How U.S. Developments Affect Asian Asbestos Victims.” During this talk, I will present information about the global reach of the American asbestos industry, the extent to which it has sold products for use outside the U.S. and Canada, and the prospects for litigation brought in the United States on behalf of foreign victims of American asbestos. In addition, I will describe the process by which dozens of American asbestos manufacturers, contractors, and distributors have been and are being reorganized under the protection of the United States Bankruptcy Courts, the establishment of court-approved Bankruptcy Trust Funds to pay the liabilities of those companies, and the potential for foreign victims of these American companies to obtain some measure of financial compensation from these Trusts.

When the currently pending bankruptcy reorganizations are concluded, there will be over $30 billion of liquid assets in these Trust Funds, which acknowledge responsibility for asbestos exposure at well over 10,000 sites around the world. Undoubtedly, there are at least tens of thousands of additional foreign sites at which American products were used and from which liability might well arise.

The full program schedule is available online.

HB Kazan Global View

Kudos to Amazon.com – Round Two

On March 30, we posted an entry reporting that although the CSI Fingerprint Kit had been dropped from the Amazon web site, the larger CSI Crime Scene Investigation Field Kit, which contained the same asbestos-contaminated powder, was still available. Once again, I wrote to Mr. Hatch in the General Counsel’s office at Amazon.com and it appears that once again, we got a response. The offending products have been taken off the Amazon site and the only remaining Planet Toys Inc. products offered for sale do not appear to contain the asbestos-contaminated powders.

So, since we believe in fairness and recognizing good conduct when it occurs, we once again commend and thank the folks at Amazon.com for responding to our concerns. We hope that they will find a way to build in affirmative protection for their customers rather than having to wait in the future to be alerted to problems such as these. Until they find a way to do that, we can only suggest continued public vigilance. If anyone sees an offending asbestos-contaminated product for sale, please let us know and we will take action on your behalf if you prefer not to try and deal with it directly yourself.

A California Hospital Burns Down – Should We Worry?

The sight of the long-abandoned military hospital burning near the intersection of Marina Village Parkway and Mariner Square loop in Alameda, California last week was cause for concern for Alameda residents. The hospital had been vacant for more than 30 years and had been slated for demolition. Firefighters, concerned with the thick smoke emanating from the building, asked nearby residents to shelter in place and to stay inside. Residents, complaining about ash falling in their yards, expressed their concern about exposure to potential hazards from toxins in the burning building.

Is this a legitimate concern? What are the health effects from substances such as asbestos released during fires?

As expected, there are both acute, immediate effects, and long-term effects. A rise in any fine particulate matter in a community’s air contributes to respiratory symptoms, particularly among children, the elderly, and those with respiratory impairments. And since asbestos doesn’t readily burn, any asbestos fibers in the destroyed building can get into the air and be widely distributed by air currents, slowly settling out over days or weeks and landing far from the original source, where they can be kicked back up into the air by cars, pedestrians, wind currents, etc. The effects of this have been studied in depth in the years following the attacks on the World Trade Center. A 2004 study by Landrigan and others at the Mount Sinai School of Medicine Selikoff Center for Environmental Sciences showed significant adverse health effects, not only in first responders, but in nearby community residents. Increased and persistent cough, bronchial hyperactivity, and asthma have plagued many in the aftermath of the attacks on the World Trade Center. Long-term consequences are still being studied, and of course we know that asbestos exposure can take decades to produce disease. So, while we cannot be certain, we should be worried enough to take precautions!

Planet Toys Inc., CSI, and Amazon – Round Two

Last week we wrote about Planet Toys’ Chapter 7 bankruptcy proceeding, its role in selling asbestos-contaminated toys to our children, and Amazon.com’s quick response when we advised them that this very dangerous product was being advertised for sale on its web site. We praised Amazon.com for removing the specific fingerprint kit from its site.

On Saturday, I attended the Asbestos Disease Awareness Organization’s 5th Annual Asbestos Awareness Day Conference, during which our efforts and Amazon’s response were praised by speakers. One of the attendees went online to confirm our account and came back and told me that a similar product was still on the web site. She was right!

CSI Field Kit

The very same fingerprint dusting powder that was part of the fingerprint kit is incorporated in a larger CSI Crime Scene Investigation Field Kit and that is still available.

I have just written to Mr. Hatch in the General Counsel’s office at Amazon.com asking them to take similar action with respect to this product. I hope to see results quickly, and will post again as soon as there is more news.

This raises a broader question about how online vendors like Amazon and online marketplaces like eBay can do a better job of protecting our children from known carcinogens and how we as consumers and citizens can most effectively bring such problems to their attention. We’ll be thinking about this subject, and invite suggestions from our readers.

Stay tuned for further developments.

Kudos to Amazon.com

Amazon.com has taken a principled stand, putting the health of America’s children before profits. Thank you, Amazon, for promptly removing the potentially dangerous "CSI fingerprinting kit" from your online store.

Parental vigilance is crucial in choosing toys for children. Asbestos is not the only problem that has been found in children’s toys. Toys have also been recalled because of choking hazards or because they contain lead-based paint. Even toys that have been removed from store shelves may still be available online. Parents should stick with reputable companies and always buy age and developmentally appropriate toys made of nontoxic materials.

Be particularly careful buying toys through resale shops or yard sales, or under any circumstances when you cannot examine the original packaging. Before you buy anything, go to the Consumer Product Safety Commission and check the recall list. HealthyToys.org has done independent testing and posts their results for more than 1,500 toys and children’s products on their site.

In particular, see their "Take Action" page on steps that you can take to ensure that children in your community stay safe. If readers find the CSI kit or other asbestos-containing toys offered online, please let us know and we will do our best to get them removed.

Planet Toys Inc.: Facing a Potential Class Action Lawsuit

Planet Toys Inc., facing a potential class action lawsuit over its “CSI” fingerprint kits, filed a Chapter 7 bankruptcy petition in New York this week. The toys were pulled from store shelves in late 2007 after tests had revealed asbestos in the kits.

Planet Toys’ CSI: Crime Scene Investigation Fingerprint Examination Kit was found to be contaminated with tremolite asbestos. The kit simulates the fingerprint dusting process used by law enforcement agencies and encouraged children to blow on the powder, putting them at risk of inhaling airborne asbestos fibers. Tremolite asbestos was found to be as high as 7.2 percent in one of the powders contained in the kit, and was found in 6 out of 8 samples tested. The Asbestos Disease Awareness Organization sponsored the testing of this and other toys and household consumer products. The study was funded in part by a grant from the Kazan, McClain, Abrams, Fernandez, Lyons, Greenwood, Oberman, Satterley & Bosl Foundation and by Kazan Law clients Paul and Michelle Zygielbaum.

Surprisingly, although banned in some states and ordered off the market by the manufacturer and by CBS, which had licenced the use of its popular CSI series name, this kit is still for sale on Amazon.com and through Ebay.com, as well.

Late in the day on March 25, I alerted Michael Hatch, an attorney in Amazon’s General Counsel’s office, about the current availability of this dangerous product on his site, and hope by now it has stopped its sales. Presumably the folks at Amazon.com share our desire to protect America’s children from exposure to known carcinogens.

Stay tuned for additional news.

CSI Fingerprint Examination Kit

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