Capper Pass summary to September '99

The RIO TINTO Campaign site

RHETORIC AND REALITY:

RIO TINTO's CAPPER PASS SMELTING PLANT, UK.

September 1999

"Rio Tinto recognises that excellence in managing health, safety and environmental responsibilities is essential to long term success."

"We are committed, both in principle and in practice, to the maximum level of transparency consistent with normal confidentiality. ... In several areas we go further. On health, safety and the environment, for example, we not only review in our annual report to shareholders major aspects of policy and practice, but we also publish a separate health, safety and environmental report, extending the quality and quantity of the information we provide."

Rio Tinto, "The Way We Work" London March 1998

Summary: Rio Tinto's public face of "transparency" and "health, safety and environmental responsibilities", is starkly at odds with the company's record of operation at the now-decommissioned Capper Pass tin smelter near Hull, England. Rio Tinto operated the plant, which used to be the world's largest tin smelter, from 1967 to 1991. Only now is the company being called to account for what happened there. Rio Tinto is embroiled in a major controversy over its refusal to release medical records – records which it is believed will reveal the true impact of the operations at the plant on the health of former workers. Environmental information already disclosed has exposed a history of contamination and the covering up of evidence about the plant's effect on local residents. One of the most serious concerns for trade unions representing Rio Tinto workers globally is that the strategy the company is employing to resist handing over medical records in the UK will be employed elsewhere. The Capper Pass scandal has implications for Rio Tinto's employees the world over.

History

The Capper Pass smelter, which had been in operation since 1937, closed in 1991 after 24 years of operation by Rio Tinto, resulting in the loss of 439 jobs. Decommissioning and demolition of the plant took place until 1995. For decades there have been unresolved questions regarding the effects of the smelter; questions about the effects of carcinogens (including radioactive substances) on the health of workers and nearby residents. In March 1997, the Transport and General Workers Union (TGWU) instructed its lawyers to sue the company on behalf of two workers, one of whom had just died from cancer.

The TGWU's Senior Regional Solicitor, David Russell, has conducted an intensive investigation over the past two years, taking evidence from several hundred witnesses including former employees, families, local residents and the farming community.

Russell has also examined several thousand documents from health authorities and environmental protection agencies covering the plant's operations and its decommissioning. Russell plans to release a detailed report on the Capper Pass smelting plant in the near future. On April 16, 1999, he published a pre-publication summary of the report titled "An Investigation Report into the Operation of the Capper Pass Smelting Plant by Rio Tinto".

In the pre-publication summary Russell stated: "The Capper Decommissioning Reports were obtained and established that the workers were variously exposed to radioactive substances, to include Polonium-210. There was regular exposure to lead, arsenic and cadmium. Heavy metal exposure was extensive. The report will establish that workers were not protected from such exposure and that the statutory authorities failed to undertake appropriate supervision and enforcement action."

"The Report will make a finding (and justify it) that Rio Tinto's Operation at Capper Pass was an environmental disaster, causing death and serious illness to many of its former employees as well as resulting in leukaemia, cancers and other serious conditions being suffered by residents."

On the government's role, the pre-publication summary says, "Previous reports published by the UK Government in respect of Capper Pass were audited by reference to the evidence now obtained. These reports were found, in a word, to be a whitewash. Having regard to the evidence uncovered in respect of the Capper Pass Operation, the Report's finding was that there had been a cover-up".

Rio Tinto has declined to comment on the pre-publication summary. The company has claimed, however, that the smelter operated at all times under the normal regulations (including environmental regulations) then in force and, as far as Rio Tinto is aware, it complied with all requirements put forth by regulators. Rio Tinto has also said that it has no reason to believe that its operations at Capper Pass caused, or materially contributed to, any ill-health among its employees or neighbouring residents. All of these claims are disputed by Russell.

MEDICAL RECORDS REFUSED

Since December 1998, Rio Tinto has refused to release the medical records of former workers and other people who, as children, had blood samples taken by the Occupational Health Department of Capper Pass. Russell wants the medical records to pursue medico-legal investigations. The appropriate Forms of Authority for the release of the medical records have been given to Rio Tinto. It has been established that Rio Tinto holds the records along with other Rio Tinto records at the RTZ Archives in London.

However, Rio Tinto refuses to release the records, claiming they were retained "for administrative purposes only" and that it does not have the legal authority to release them. Rio Tinto argues that the smelting plant was operated by Capper Pass and Son Limited, not by Rio Tinto. Rio Tinto claims that the records became the property of Envirogen Limited, when it purchased the smelter in 1995. Envirogen changed its name to Melton Land Ltd in 1998. Accordingly, so the argument goes, Rio can only release the documents with the permission of Melton. Russell disputes this line of reasoning. The fact that Rio Tinto sold Capper Pass & Son Limited to Envirogen Limited in 1995 is irrelevant, as by that date, all employees had ceased employment with Capper Pass, and the records remained with Rio Tinto.

According to Russell, "The attempt to involve Melton Land Limited in the process is no more than an abrogation of (Rio Tinto's) company's duties and responsibilities to former employees, their families and next of kin."

Throughout the operation of the plant, Rio Tinto was responsible for all health, safety, environment and regulatory matters. All of the employees represented by Russell, deceased or living, were employed by Capper Pass, within the Rio Tinto Group, until the smelting plant closed in 1991.

Rio Tinto has responsibility for medical records between 1967-1991. Prior to the demolition of the plant, Rio Tinto (not Capper Pass & Son Limited) made arrangements to remove and store all documentation including medical records. It is documented that archived material was to be the responsibility of the Records Manager, RTZ Limited, London. At no stage, whether in the sale to Envirogen or otherwise, did Rio Tinto purport to pass ownership of its company records.

Melton Land Limited had no involvement until after the closure of the smelting plant and the dismissal/redundancy of all employees. There is no evidence that any employees were subject to Transfer of Undertaking or that they ever entered into Contracts of Employment with Melton Land Limited. Moreover Capper Pass was not sold as a Smelting or Trading Operation.

Direct submission for the records has also been made to Dr. Richard Gaunt, Rio Tinto's Occupational Physician. According to Russell, Gaunt is not, and cannot be, subject to the instructions of Melton Land Limited, whether as a subsidiary of Envirogen Limited or otherwise. If Gaunt released the records to Melton or its solicitors, it would be a breach of his duty of confidentiality in which event, Russell says, the matter would be referred to the Head of Screening at the General Medical Council. For Gaunt, the only material event was the 1991 closure of the smelting plant at which stage the medical records entered Rio Tinto's archives subject to the strict custody of Gaunt.

Rio Tinto has argued that it has been necessary to apply to Melton's solicitors for authorisation to release the medical records. Rio Tinto maintains that once an appropriate explanation had been given to the solicitors representing Melton Land Limited, then Rio Tinto would ask Gaunt to release copies of the records. As at August 4, 1999, Rio Tinto claimed it was still awaiting instructions from Melton Land Limited regarding the medical records.

Since Russell first requested release of the medical records in December 1998, a number of former workers at Capper Pass have died. Thus Rio Tinto's procrastination comes when time is of the essence.

Russell has raised the option of issuing High Court proceedings for Pre-Action Disclosure under Civil Procedure Rules should Rio Tinto persist with its refusal to release the records. The European Court could also become involved.

Rio Tinto has attempted to avoid responsibility not only for the medical records, but also for the smelting operations of Capper Pass in their entirety. On May 25, Rio Tinto's Company Secretary said that Capper Pass was, at all times during Rio Tinto's ownership, a separate, free-standing, limited liability company in its own right. The Company Secretary "expressly rejected" obligations and responsibilities ascribed to it by Russell.

UK GOVERNMENT RESPONSE

On May 11, 1999, an Early Day Motion was tabled in the House of Commons, reading as follows: "That this House, concerned at the reports it has received of major contamination of workers, residents and the environment by arsenic, lead, heavy metals and radioactive material, causing leukaemia, cancers and other serious illnesses all deriving from the activities of Rio Tinto PLC and the operation of its former Capper Pass Smelting Plant near Hull, invites Her Majesty's Government to institute a full Public Inquiry and report back to the House."

An Early Day Motion, tabled in the House of Commons on June 14, 1999, read as follows: "That this house expresses its concern that Rio Tinto have delayed the release of the Occupational Medical Records of former workers at the Capper Pass Smelting Plant near Hull; notes that the employees undertook a number of hazardous duties and were subject to exposure to dangerous substances including carcinogenic and radioactive materials; and calls upon the Directors of Rio Tinto to release the medical records of its former workers so that a thorough investigation into the high incidence rate of cancers and other serious industrial illnesses can take place."

In July 1999, John Prescott MP, Deputy Prime Minister, referred the matter of the Occupational Medical Records to Tessa Jowell MP, Health Minister. As at August 5, 1999, it was not clear what action Jowell intended to take.

In relation to the allegations of exposure of former Capper Pass employees and neighbouring residents to hazardous substances, David Davis, Tory MP for Haltemprice and Howden, said he found it hard to believe there was an orchestrated cover up. He said that the accusations must be investigated by an authenticated and impartial body.

IMPLICATIONS FOR RIO TINTO EMPLOYEES WORLDWIDE

The importance of trade union membership has been reinforced by the Capper Pass controversy. The role of the Transport and General Workers Union has been crucial in assisting former Capper Pass workers or their widows and families.

The difficulties faced by workers, particularly non-union workers, can be (and is) exacerbated by the long latency period for a number of diseases, particularly cancers, which can be caused through exposure to hazardous substances in the workplace. In the time it can take a disease to manifest, an errant company can, like a retrovirus, change its shape a number of times. Such companies have ample opportunity to distance themselves from corporate responsibility through using legal measures which may keep evidence from those seeking compensation.

In respect of any future dealings with Rio Tinto, it may be important to protect the future rights of workers and their families by ensuring that there is no attempted transfer of occupational medical records to any third party.

Many Rio Tinto employees around the world are working in hazardous industries. Where there is no occupational medical surveillance, such as system should be forced upon Rio Tinto.

TIMELINE

1937: Smelting plant begins operations.

1967: Smelting plant acquired by Rio Tinto.

4 Feb 1991: Rio Tinto announces that the Capper Pass smelting operations will be terminated and the plant decommissioned.

1991: Capper Pass plant closes with the loss of 439 jobs.

1991-1995: Plant decommissioning. By 1995, the site had been demolished and cleared.

1995: Rio Tinto sells Capper Pass & Son Limited to Envirogen Limited.

1997: The TGWU instructs its lawyers to sue Rio Tinto on behalf of two workers, one of whom had just died of cancer. The TGWU's Senior Regional Solicitor, David Russell, begins investigation.

2 Apr 1998: The name Capper Pass & Son Limited is changed to Melton Land Limited.

April 1998: Twenty six days after the change of name, Rio Tinto appoints a Receiver and Manager in respect of Melton Land Limited pursuant to a Legal Charge dated July 28, 1995. Notice that the Receiver and Manager had ceased to act was given on September 9, 1998.

Dec 1998: Forms of Authority are lodged with Rio Tinto seeking release of medical records.

Dec 1998 - Aug 1999 (ongoing): Rio Tinto refuses to release medical records.

April 1999: David Russell's pre-publication report is released.

Late 1999: Russell's full report is expected to be released.