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June 23, 2018

Fears for fleet after third navy asbestos discovery

Concerns have been raised about the operational effectiveness of the Naval Service after it emerged that a third vessel has been discovered to have potentially fatal asbestos onboard.

The Irish Examiner can reveal the ageing LÉ Aoife was immobilised off the Cork coast after it was discovered that a blown engine gasket was suspected to contain asbestos.

This came after she was put to sea even though other asbestos-containing material was removed from her days before.

LÉ Aoife was anchored off Ballycotton for nearly 24 hours after the latest discovery of asbestos in its engine room and became the third vessel in the eight-ship fleet to have asbestos issues.

The LÉ Ciara and LÉ Orla have been “locked down” for the last couple of weeks at the Naval Service’s base in Haulbowline, Co Cork, after asbestos was found onboard both vessels.

The Naval Service admitted last night that asbestos was found on the LÉ Aoife last week following routine maintenance and she was subsequently sent out on patrol.

A spokesman said that “concern was raised over several gaskets, lagging and other material by staff, one of these items subsequently tested positive for asbestos”.

According to PDFORRA, which represents enlisted members of the Naval Service, the LÉ Aoife, which is over 30 years old, then set sail after the removal of the asbestos.

However, PDFORRA general secretary Gerry Rooney said a gasket in one of the ship’s two engines “blew” last Monday night and she remained anchored off Ballycotton because it was also suspected that it contained asbestos. The ship went back on patrol at about 7pm last night and is expected to brought back into port shortly for a thorough asbestos check.

Mr Rooney said it was “a very worrying development” and that the navy’s “operational capabilities were diminished” as a result of the asbestos issue which, he said, was of “concern” to his members.

Mr Rooney also questioned why the Naval Service had not implem-ented a promise to train numerous personnel quickly in identifying asbestos risks on its ships.

He said it was now imperative that the navy carried out a full audit immediately of all its ships for the substance.

The Naval Service spokesman said a routine maintenance procedure on the LÉ Aoife raised concern by crew members about asbestos still being onboard.

“After the full risk assessment was completed and whilst the procedure was being carried out, a gasket which was being removed raised concerns. This gasket was sealed into a protective bag and removed from the area,” said the spokesman.

“It should be stressed that this gasket has not yet been tested so it is impossible to state if it contains asbestos. This gasket was also covered in lubricant and had not been handled or ground in such a manner that could potentially lead to the release of any harmful fibres should they prove to be present,” he said.

The spokesman said the health and welfare of its personnel remained its primary concern. “All Health and Safety Authority guidelines were followed as those issues were addressed.”

It is expected the LÉ Ciara and LÉ Orla will return to service when the experts remove their asbestos “which is estimated to take a number of weeks”.

“Following the recent experiences, the Naval Service has introduced further precautionary protocols on all vessels and the level of awareness of this potential risk has also been raised to mitigate any potential risk,” said the spokesman.

Commenting on the LÉ Aoife, the spokesman said the vessel would be examined by an expert contractor when she comes back into Haulbowline, but did not stipulate exactly when that might be, primarily for security reasons.

The spokesman added that “the Naval Service is currently engaged with their personnel to further inform them on these issues and address their concerns in a proactive manner”.

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Fears for fleet after third navy asbestos discovery

Will Fourth Circuit Decision To Unseal A CPSC Case Be A Boon To Asbestos Defendants?

The U.S. Court of Appeals for the Fourth Circuit issued a decision on April 16 in a case called Company Doe v. Public Citizen that signals hope for asbestos defendants who are seeking to combat fraudulent claims in North Carolina. Those claims were brought in connection with a bankruptcy proceeding styled as In re: Garlock Sealing Technologies, LLC et al. (“Garlock”). How could an anonymous CPSC case from Maryland affect a gasket company’s asbestos bankruptcy from North Carolina? In a word: transparency. Both cases involve the ability of third parties to gain access to documents enmeshed in public litigation.

In issuing its ruling in Company Doe, the Fourth Circuit surely had no inkling that its words might cheer long-suffering asbestos defendants. However, that court’s insistence on transparency and public access to the judicial process bodes well for an asbestos case in which similar issues have been percolating. When the district court (and perhaps eventually the Fourth Circuit) hears motions from asbestos defendants and others about divulging sealed documents from the Garlock asbestos bankruptcy docket, the recent decision in Company Doe will surely loom large. There is no guaranty as to where the Fourth Circuit ultimately will come down on the sealing issues in Garlock. But it does appear that a new day is dawning, and—if the Court of Appeals acts consistently with its stated policy favoring public access in Company Doe—it just might prove to be the Day of Reckoning for fraudulent asbestos plaintiffs and their trial lawyer accomplices.

Company Doe Takes Two Steps Forward in District Court

Company Doe v. Public Citizen, No. 12-2209 (“Company Doe”), started when the U.S. Consumer Product Safety Commission received a “report of harm” and sought to post it on its new government-run product safety database website. [Full disclosure: I worked as legal counsel to CPSC Commissioner Anne Northup from 2009 through 2010, but left before this report of harm was received.] The report alleged that a company’s product was related to the death of an infant, but the company strongly objected that the report of harm was not accurate. When the company could not obtain satisfaction through direct negotiations with the Commission, it was forced to file suit against the CPSC in federal district court in Maryland (where the CPSC is located) to enjoin the Commission from posting the erroneous report of harm.

Seal of the Consumer Product Safety Commission. Seal of the Consumer Product Safety Commission. (Photo credit: Wikipedia)

In an unusual twist, the company asked the district court to proceed under two special conditions. First, the company sought to remain anonymous (hence, the “Company Doe” title of the case). Second, the company asked to seal most or all of the proceedings. Because the entire point of the company’s case was to prevent its being falsely associated with an infant’s death, the company argued that allowing its identity to be disclosed in court—and then immediately in the newspapers and across the internet—would defeat the very relief that it sought. Furthermore, the company contended that the court should seal any documents in the case that could be used to deduce its identity. The agency and several self-appointed consumer groups objected to both conditions. Nevertheless, the district court granted the company’s request for anonymity, sealed many records, and kept most filings off the court’s public docket.

Not only did the court rule in Company Doe’s favor on anonymity-related issues, but it ultimately sided with the company on the merits too. The court significantly redacted its opinion in Company Doe v. Inez Tenenbaum et al., as well as portions of other documents that became public. But Judge Alexander Williams Jr.’s decision made it abundantly clear that, by trying to post a report of harm that was not related to the company’s product, the CPSC’s actions were arbitrary and capricious, an abuse of agency discretion, and in violation of the Administrative Procedure Act:

The Commission’s position that the report should be published is untenable. In violation of statutory and regulatory mandates, the report is misleading and fails to relate to Plaintiff’s product in any sensible way … In short, the Commission’s decision is unmoored to the CPSIA’s public safety purposes and runs afoul of bedrock principles of administrative law and the sound policies that buoy them. (pp. 53-4)

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Will Fourth Circuit Decision To Unseal A CPSC Case Be A Boon To Asbestos Defendants?

India's big hurdle in the fight against cancer

India has become the world’s second largest market of asbestos as the government backed by powerful corporate lobby turns a blind eye to diseases related to the use of the hazardous chemical

Banned or restricted in more than 50 countries, white chrysotile asbestos is used in India widely. Though it is listed as a hazardous chemical not much has been done to check its use, despite awareness about deaths from asbestos-related cancers. If anything the supply has only gone up.

The figures are shocking. In India, import of asbestos rose from 253,382 tonnes in 2006 to 473,240 in 2012, a steep increase of 186 per cent in six years.

On Tuesday and Wednesday, the global asbestos industry is holding a conference in New Delhi co-organised by the International Chrysotile Association and Asbestos Cement Products Manufacturers Association, India. The presence of Indian government dignitaries will demonstrate which officials act as impediment to ban white chrysotile asbestos in India to safeguard public health.

Their presence will illustrate who compelled the Indian delegation to take a ridiculous stand at the United Nations Rotterdam Convention.

India opposed the listing of chrysotile asbestos under Annex III of the Rotterdam Convention at the sixth meeting of Conference of Parties on May 8 in Geneva. Substances listed under Annex III of the Convention — a global treaty to promote shared responsibilities in relation to import of hazardous chemicals — require exporting countries to advise importing countries about the toxicity of the substances so that importers can give their prior informed consent for trade. The convention does not ban or limit trade in such hazardous substances.

The Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade is aimed at helping developing countries in managing potentially hazardous chemicals imported by them.

During the fifth Conference of Parties in June 2011, the Indian delegation had agreed to the listing of chrysotile asbestos in the PIC list, but later took a U-turn.

The Indian delegation at the UN meeting belittled India’s stature by citing an admittedly tainted and grossly conflict of interest ridden scientific study that was finalised after discussions with vested corporate interests.

A letter from the Union Ministry of Environment and Forests reveals that the Indian delegation led by of Ajay Tyagi currently chairman, Central Pollution Control Board was misguided by a note of the Department of Chemicals and Petrochemicals, Union Ministry of Chemicals and Fertilizers to misrepresent Government of India’s position on hazardous substance chrysotile asbestos at the Sixth Conference of Parties of UN’s Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade held in Switzerland.

Indian delegation’s position was inconsistent with domestic laws, which lists asbestos as a hazardous substance. Notably, ACPMA which accompanied the delegation is facing a probe by Competition Commission of India after a reference from the serious fraud investigation office

In keeping with Indian laws when the UN’s Chemical Review Committee of Rotterdam Convention recommended listing of white chrysotile asbestos as hazardous substance, it is incomprehensible as to why Indian delegation opposed its inclusion in the UN list. The only explanation appears to be the fact that the Indian delegation did not have a position independent of the asbestos industry’s position, which has covered up and denied the scientific evidence that all asbestos can cause disease and death.

Image: A view shows the operations in a mine producing white asbestos in Brazil

Photograph: Ueslei Marcelino/Reuters

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India's big hurdle in the fight against cancer