Tempers flare as DuPont asbestos trial enters fourth week
Thursday, March 06, 2008
By David Yates
Tempers began to flare last week as the possible billion-dollar asbestos trial of Willis Whisnat Jr. et al vs. DuPont De Nemours wrapped up its third week of testimony on Friday, March 7.
The trial, going on in Judge Donald Floyd's 172nd Judicial District Court, focuses on Whisnat, a pipefitter who smoked throughout his adult life and worked at DuPont's Sabine Works facility in Beaumont. Working back in 1968 as an independent contractor, he was allegedly exposed to enough asbestos fibers to contract mesothelioma - a cancerous lung condition.
The cancer claimed Whisnat's life sometime in the late '90s. He was around the age of 72 when he died.
This week, jurors heard excerpts of depositions given by several former DuPont workers who worked with Whisnat during the late '60s. The workers testified that they never saw Whisnat wearing a respirator - a device designed to filter asbestos dust.
DuPont contends that its safety policies during the '60s and '70s required employees working around "extreme" dust to wear respirators.
However, an industrial hygienist, hired by the plaintiffs, passionately testified that workers were not capable of determining when they were working in "extreme" dusty conditions.
During his testimony, the plaintiffs' expert began shouting at DuPont defense attorney Larry Cotten.
Cotten asked if the man was upset with him. The plaintiff's expert responded by saying, "I'm upset with (DuPont) for not implementing (adequate asbestos safety) programs."
Cotten is an attorney for the Fort Worth law firm Cotten and Schmidt.
The trial to date
The trial began Thursday, Feb. 21 and is expected to conclude sometime in mid March.
According to expert testimony offered by Dr. Edwin Holstein, DuPont was well aware asbestos in the work place was killing its workers in the early 1960s, but did nothing until the government stepped in.
After Whisnat's death, his family joined an ongoing class-action suit against DuPont and several other oil and chemical companies, which was first filed in the Jefferson County District Court on June 4, 1998. The class members claim DuPont negligently and maliciously exposed workers to asbestos when the company knew asbestos dust and fibers created health hazards.
According to medical testimony, Whisnat's chest was riddled with bone-eating tumors, a condition the plaintiffs are attempting to link to Whisnat's seven-year stint at DuPont.
In his opening remarks, plaintiff's attorney Glen Morgan said DuPont's asbestos policies during the '60s, '50s and '40s were so malicious that the company's "right to exist should be taken away."
Morgan is a partner in the Reaud, Morgan & Quinn law firm and represents the family of the late Willis Whisnat .
Asbestos, a naturally occurring mineral, is an excellent fire retardant and was wildey used by industrial companies, like DuPont, in the early decades of the 20th century to insulate pipes, according to the Occupational Safety and Health Administration.
"The Defendant (DuPont) knew of the toxicity of asbestos prior to the first exposure of Decedent (Whisnat) to the defective and unreasonably dangerous material on its premises," Morgan wrote in Whisnat's suit.
Morgan continues by writing, "Plaintiffs will not seek an amount in excess of $4,100,000,000, excluding pre- and post-judgment interest and costs of court, as compensation for Plaintiffs' damages."
If Morgan has his way and DuPont is forced out of existence, more than 60,000 people would lose their jobs, according to employment figures on DuPont's Web site. However, Morgan did say during opening remarks that he would not ask jurors to award his clients billions of dollars.
Morgan continued by comparing the chemical company to killers on trial who deserve, in his opinion, to be executed. "There are some corporations whose rights … to exist should be taken away."
The plaintiffs maintain that DuPont knew about the dangers of asbestos as early as 1940, but chose to conceal their findings and focus on a defense to protect the company from lawsuits rather than implement policies that would save the lives of its workers.
DuPont's attorneys argue that its 1940s studies only focused on people who were "heavily" exposed to asbestos on a daily basis, like miners for example, not chemical plant workers.
DuPont also argues that the chemical company was a consumer not a producer of asbestos-containing products, placing product liability on the seller - and took steps to protect its employees from asbestos before OSHA implemented asbestos guidelines in 1972.
In addition, DuPont contends Whisnat was an independent contractor, not a DuPont employee, and therefore Whisnat's employer, B.F. Shaw, was directly responsible for his safety. And even though he was not a DuPont employee, the company still protected Whisnat from asbestos by requiring pipe workers to wear respirators.
DuPont protected its other workers by barricading asbestos-laced pipe worksites.
The plaintiffs, however, argue that asbestos fibers can drift beyond the barricade, which only consisted of yellow caution tape.
Dr. Holstein testified that an asbestos fiber is thousands of times smaller than a human hair and can float in the air for hours.
Case No. E159-183-Q
June 25, 2009
DuPont sued over asbestos in Argentina
Ex-Lycra plant workers say they were exposed
By ANDREW EDER and AARON NATHANS
The News Journal
DuPont Co. exposed workers in Argentina to asbestos until the late 1990s despite knowing the risks of the material, according to three lawsuits filed Wednesday in Delaware.
The lawsuits came from former workers at a Lycra spandex plant in Mercedes, Argentina, that was part of DuPont until the sale of its textile unit in 2004.
DuPont knew that exposure to asbestos could harm workers as early as 1964, the complaints said, but the company continued to use asbestos in the heat pipes and machinery of its Argentina facilities until the late 1990s.
The workers, Cristian Dematei, Juan Carlos Laborda and Ceferino Ramirez, are represented by the Wilmington law firm Jacobs & Crumplar. The law firm said more lawsuits would follow.
Dematei, who worked at the facility for 11 years, suffers from asbestosis, a chronic condition that causes shortness of breath and an increased risk of lung cancer, the complaint said.
Laborda worked at the plant from 1968 to 1980, according to his complaint, and suffers from asbestosis and asbestos-related lung cancer.
Ramirez worked at the facility for 32 years before retiring in 1993. He has been diagnosed with asbestos-related laryngeal cancer and asbestosis, his lawsuit said.
The lawsuits allege that workers were never warned of the dangers of asbestos exposure or given respiratory protection.
Amanda Velazquez, asbestos medical paralegal for Jacobs & Crumplar, said: "They need to break the double standard," referring to DuPont stopping using asbestos in U.S. plants earlier.
DuPont spokesman Dan Turner said, "While we have not had the opportunity to review the filing yet, and cannot comment on the specifics, we do find it puzzling that the plaintiff's attorneys have filed the compliant in Delaware rather than the country of origin. The safety and health of our employees, our neighbors and our community has and continues to be DuPont's highest priority."
Velazquez said it makes sense to sue a company in the place where it is based.
Friday, July 03, 2009
SOMETHING IN THE AIR:
The asbestos document story
[Excerpt | Full document]
Nothing proves the culpability of the asbestos manufacturers in the death and injury of asbestos workers quite like internal documents from the companies themselves. These papers, just a handful of which we present here, prove beyond a shadow of a doubt that the companies and their insurers knew the hazards of asbestos and concealed this information from workers for decades. More than any other piece of evidence, it is the companies' own internal papers that have convinced juries of citizens across the country that workers and their families deserve compensation to help them manage the severe and often fatal health consequences of working with asbestos.
Browse a selection of asbestos industry documents dating from 1948 through 1988.
The current push by defendant industries to establish a national asbestos victims trust fund is driven in large part by the fact that courts consistently find asbestos companies guilty, not just of exposing their workers to a substance — asbestos — that could kill or severely injure them, but of doing this with full knowledge of the fatal consequences of their actions, and of actively concealing this truth from these same workers.
The 1966 comments of the Director of Purchasing for Bendix Corporation, now a part of Honeywell, capture the complete disregard of an industry for its workforce that is expressed over and over again in company documents spanning the past 60 years.
"...if you have enjoyed a good life while working with asbestos products, why not die from it."
— 1966 Bendix Corporation letter [view document]
Proponents of asbestos tort reform argue that companies that "had nothing to do with" asbestos manufacturing are being dragged into court unfairly. The documents presented here, while just a smattering, illuminate the dimensions of what was clearly, and remains today, a sweeping deception of American workers across entire sectors of the economy.
It took more than just Johns Manville and W.R. Grace lying to their workers to produce the ten thousand Americans currently dying each year of asbestos diseases. It took similar behavior at Exxon, Dow (Union Carbide), DuPont, Bendix (now Honeywell), The Travelers, Metropolitan Life, Dresser Industries (now Halliburton), National Gypsum, Owens-Corning, General Electric, Ford, and General Motors, just to name a few. The list is a roll call of major American corporations. What they did to their workers, the public, and their communities, we can only hope will never be repeated.
Early knowledge that asbestos was deadly
Asbestos diseases have been known and documented for over 100 years. During an autopsy in 1900, Dr. H. Montague Murray, a physician in London's Charring Cross Hospital, discovered asbestos fibers in the lungs of a thirty-three-year old man who had worked fourteen years in an asbestos textile factory and died of severe pulmonary fibrosis, which the doctor linked to his occupation (Brodeur, pg. 11).
W.R. Grace Company Indicted on Federal Criminal Charges
In 1924, the first clear case of death due to asbestosis was published in the British Medical Journal. Dr. W.E. Cooke, an English physician who gave the disease its name, reported the results of an autopsy on a thirty-three-year old woman who had worked in an asbestos textile factory for thirteen years. The publication led to years of intensive study of asbestosis in Britain, during which hundreds of asbestos-textile workers were examined. Doctors and scientists found that a quarter of the workers developed pulmonary fibrosis, the condition which Cooke dubbed asbestosis (Brodeur 1985, pg. 13).
In the United States, in 1917, Dr. Henry K. Pancoast, of the University of Pennsylvania School of Medicine, observed lung scarring in the X-rays of fifteen asbestos-factory workers. In 1918, the U.S. Bureau of Labor Statistics published a report by an insurance statistician noting the unusually early deaths of asbestos workers and revealing that it had become common practice for insurers to deny coverage for workers because of the "assumed health-injurious conditions" in the asbestos industry (Hoffman 1918). In 1927, the first workmen's compensation disability claim for asbestosis was upheld by the Massachusetts Industrial Accident Board; and in 1930 the first U.S. case of asbestosis was reported in the journal Minnesota Medicine (Brodeur, pg. 14).
By the 1930s, asbestos manufacturers and their insurance companies knew that asbestos was killing workers at alarming rates. In 1934, Aetna insurance company published the Attorney's Textbook of Medicine, which devoted a full chapter to asbestos exposure, noting that asbestosis was "incurable and usually results in total permanent disability followed by death." (Bowker, pg. 18)
In October 1935, the Eastern Underwriter reported on the "alarming increase of asbestos cases" in the United States (Bowker, pg. 18). Beginning in 1931 and throughout the 1930s, the asbestos industry commissioned research to determine the toxicity of various fibrous silicates such as talc and tremolite when inhaled (Michelbacher 1942, pg. 490).
So severe were the hazards of asbestos that by the eve of World War II, asbestos manufacturing was in decline. The war, however, reversed the fortunes of the asbestos industry and launched an era of massive use of asbestos in ships that led to an explosion of asbestos products for the next three decades.
The resulting atrocity has been described and documented in detail by Paul Brodeur, in Outrageous Misconduct; Barry Castleman, in Asbestos: Medical and Legal Aspects; and more recently by Michael Bowker, in Fatal Deception, and Andrew Schneider, in An Air That Kills, with a particular focus on the W.R. Grace asbestos mine in Libby, Montana.
"So many embarrassing documents"
We present here a small selection of insurance and manufacturing company documents made public through litigation. These papers reveal a brazen disregard for the men and women who, by the 1960s, were dying by the thousands each year for these businesses, a history of abuse and deception that is unparalleled in American industrial history. In large measure, it is the written words of these company executives that have convinced juries across America that workers and their families deserve full compensation for their suffering.
Both insurers and manufacturers understand the power of these documents. As litigation by asbestos workers began to heat up in the 1980s, industry officials recognized the potential significance of the documents being extracted from the companies by the courts. A 1988 memo written by an asbestos litigation fund trustee lamented that: "there are so many embarrassing documents that people disagree as to which group of any ten documents is the worst." [Excerpt | Full document]
As the author notes, more documents were certain to become public during litigation, and the outlook for the companies was bleak:
"The documents noted above, however, show corporate knowledge of the dangers associated with exposure to asbestos dating back to 1934. In addition, the plaintiffs' bar will probably take the position — not unreasonably — that the documents are evidence of a corporate conspiracy to prevent asbestos workers from learning that their exposure to asbestos could kill them. (One employee of Manville, who co-authored a 30-year-old document which is among the group of documents described above, was told by Manville's Chief of Litigation to hire his own lawyer after the document came to light because it was the opinion of the Chief of Litigation that the employee could be indicted for manslaughter.)"
— Memo from a trustee of the Manville Trust, 1988
[Excerpt | Full document]
Industry-wide knowledge of the hazards
During the 1950s and 60s, companies were fully aware of the potentially fatal consequences of working with asbestos, including its ability to cause cancer, yet millions of workers were exposed to asbestos on the job with virtually no health protections.
As early as WWII, ASARCO knew that asbestos permanently damaged the lungs leading to a progressive disease called asbestosis, which is sometimes fatal. "We knew very well then that inhalation of excessive asbestos dust over a period of time could cause asbestosis." [View document]
In a 1949 document, Exxon admitted that asbestos causes lung cancer, silicosis, fibrosis and erythema. This relatively early admission that asbestos causes lung cancer foretold literally hundreds of thousands of deaths from asbestos in subsequent decades, mortality that continues today in the United States at a rate of at least 5,000 deaths per year. In line with the policies of all asbestos users and manufacturers, this information was under the banner: "COMPANY CONFIDENTIAL: Not For Publication In Present Form." [View document]
National Gypsum was quite explicit about asbestos risks. In a 1958 memo, the company states:
"We know that you will never lose sight of the fact that perhaps the greatest hazard in your plant is with men handling asbestos. Because just as certain as death and taxes is the fact that if you inhale asbestos dust you get asbestosis."
— 1958 National Gypsum Memo [View document]
But perhaps the most authoritative account of the dangers of asbestos can be found in a blistering 1964 report from a medical doctor hired by Philip Carey Manufacturing, in which the doctor describes in no uncertain terms to the company's legal department the health hazards of asbestos to the company's workers and customers. (The doctor was fired soon after the company received his report.)
"There is an irrefutable association between asbestos and cancer. This association has been established for cancer of the lung and for mesothelioma. There is suggestive evidence... for cancer of the stomach, colon and rectum also. There is substantial evidence that cancer and mesothelioma have developed in environmentally exposed groups, i.e., due to air pollution for groups living near asbestos plants and mines. Evidence has been established for cancer developing among members of the household. Mesotheliomas have developed among wives, laundering the work clothes of asbestos workers. Substantial evidence has been presented that slight and intermittent exposures may be sufficient to produce lung cancer and mesothelioma. There should be no delusion that the problem will disappear or that the consumer or working population will not become aware of the problem and the compensation and legal liability involved." (Bowker, pg. 171)
Insurance companies try to dodge a bullet
By the 1970s, the insurance industry was deeply concerned about its financial vulnerability to asbestos claims. In 1980, the American Insurance Association predicted that there would be between 8,000 and 13,000 claims a year from asbestos-caused cancer from 1977 through 1995 [View document]. This estimate did not include anything but pure occupational exposure to asbestos, even though asbestos was used in several thousand consumer and industrial products at that time, and exposure to the general public was not only staggering in size, but also essentially uncontrolled.
"Control of asbestos in the community air is impossible when you consider the contribution from brake linings, abrasion of piping, house siding or other materials widely handled by the general public."
— 1969 The Travelers Insurance Co. memo
[Excerpt | Full document]
Companies facing legal action were growing concerned about the implications of their extensive asbestos releases into the environment. The potential liability represented by environmental pollution with asbestos and the release of asbestos fibers in the home became a subject of grave financial concern within the industry.
"Asbestosis, lung or colon cancer claims whether comp or liability, from asbestos workers or those working with asbestos materials, are one thing, but the general public exposure and claim potential is much more serious."
— 1969 The Travelers Insurance Co. memo
[Excerpt | Full document]
Even worse, reductions of these exposures seemed futile:
"If indeed there is at least a causal relationship of asbestos to the cited diseases, which there appears there is, then a most serious loss potential to the Travelers exists. Even with the engineering controls we have available, the exposure will continue and the long development period of the disease suggests past exposures will continue to haunt us.
— 1969 The Travelers Insurance Co. memo
[Excerpt | Full document]
In 1968, The Travelers Insurance Company concluded that they faced major financial exposure from deaths due to non-occupational asbestos exposure near asbestos manufacturing facilities. In particular, the company concluded that it had "no chance of winning" a case brought by a resident living near the Johns Manville plant in New Jersey, who died of mesothelioma in June 1967. This certainty of defeat was no doubt solidified when a Manville attorney informed the Travelers that:
"Confidentially Johns-Manville has been contaminating the 'Hell' out of both the air and the water for quite some time."
— 1969 The Travelers Insurance Co. memo
[Excerpt | Full document]
A 1975 insurance industry memo summarized non-workplace exposure as a major risk facing the industry. Forty percent of housewives and 50 percent of blue-collar workers had identifiable asbestos fibers in their lungs at death. The author concluded that, "It is now found (that) the public in general is or has been exposed to asbestos products to a far greater degree than previously recognized." [Source: Insurance industry memo 10/09/75]
At the same time, the hazards of asbestos to family members were well known, and nothing was being done about it. Workers were taking home huge amounts of asbestos dust on their clothes, contaminating their homes and exposing their wives who regularly, and unsuspectingly, handled and washed the dust-laden garments.
A 1974 memo from Exxon declares:
"Not only are we violating the existing regulations concerning clothing by not providing such clothing and laundering it, but we are also failing to protect our employees and the families of our employees from asbestos exposure."
— 1974 Exxon memo [View document]
On June 18, 1975, The Travelers Insurance Company's Catastrophe Products Committee laid out "facts" well known to the asbestos industry and its insurers at the time:
"1) Asbestos causes cancer. Once asbestos fibers are ingested by a person, in no matter how small a quantity, they remain in the body and can be the cause of cancer 10 or 20 years later. There is no known way of removing the fibers from the body.
2) Asbestos is used in a wide variety of products: insulation, roofing, chemicals, wallboard, piping, etc."
— 1975 The Travelers Insurance Co. memo [View document]
Asbestos was clearly a potential catastrophe in the making for the industry. An Insurance Company of North America (INA) memo from the time predicts at least $20 billion dollars in payouts for asbestos-caused cancers alone. This figure assumes just $10,000 per case, a relatively low figure for asbestos cancers, which are almost always fatal. It does not include any deaths from non-occupational exposure.
"The attached article is an estimate of the possible numbers (plaintiffs) of Asbestos workers who will die from cancer in the next half century.
This figure does not take into consideration "other" possible cancer victims of Asbestosis such as wives of workers, persons living near asbestos factories, school children, etc."
"400,000 potential plaintiffs could generate 2,000,000 files (5 INA insureds per plaintiff).
INA's possible exposure: 2,000,000 x $10,000.00 = 20 Billion dollars"
— Undated INA memo [View document]
The goal of The Travelers' "Catastrophe Products Committee" was to study the potential for asbestos to wipe out the company's assets, and then, in the company's own words, "make the catastrophe reducible to a level which would not imperil the assets of The Travelers." [View document]
The question was how to do it. The decision, on the part of insurers, was to adopt the same strategy as producers: deny prior knowledge and admit no liability.
In 1977, the insurance industry's "discussion group on asbestosis" unanimously decided not to admit liability in asbestosis cases. The strategies considered by the insurance companies are also laid out in the minutes of the meeting, including the "possible use of governmental immunity as a defense" in an effort to place the blame on the government for not warning workers of the dangers of working with asbestos.
"The meeting closed with a unanimous rejection of a suggestion that liability in asbestosis cases be admitted..."
— 1977 "discussion group on asbestosis" memo [View document]
The cover up
"KEEP THIS INFORMATION MOST CONFIDENTIAL"
By the late 1940s, asbestos manufacturers, industries that used significant amounts of asbestos in their operations, and their insurance companies all acknowledged internally that asbestos caused lung cancer, asbestosis and mesothelioma. Rather than adopt safety standards, switch to safer products, or provide protections for workers, these companies went to extraordinary lengths to conceal the truth about asbestos from workers, the public and the press. In some cases company officials went so far as to monitor the health of workers while deliberately withholding the results of this monitoring from them. Typically, however, worker health was not actively monitored, but decisive information on the dangers of asbestos was held secret. In other cases, companies interfered with and even rewrote scientific study results, restricted key information on asbestos hazards to management while keeping it from workers, and deliberately failed to label, or altered labels on, products.
A 1949 Exxon document described above illustrates the point. The document lists the diseases from asbestos exposure as "Silicosis, Fiberosis, Erythema & Cancer of Lungs" under the banner "COMPANY CONFIDENTIAL: Not For Publication In Present Form." [View document]
Asbestos diseases are latent, taking decades to appear after initial exposure. This latency period allowed companies to use workers for decades, knowing they were being injured or perhaps even killed by their work, yet also knowing that the men and women on the job would have no early warning that they might die from the asbestos they were exposed to.
For companies like Exxon, DuPont, and Dow that were sufficiently removed from basic asbestos manufacturing, withholding this information was relatively simple — workers would not ordinarily think of asbestos risks — and concealing information was a very effective way to reduce compensation payouts.
As put in a memo from Johns-Manville's medical director to corporate headquarters:
"The fibrosis of this disease is irreversible and permanent so that eventually compensation will be paid to each of these men. But, as long as the man is not disabled it is felt that he should not be told of his condition so that he can live and work in peace and the company can benefit by his many years of experience." (Brodeur, pg. 102)
By the early 1960s, the hazards of asbestos were well known within the management level of most companies that dealt with it. Workers and customers, in contrast, were generally kept in the dark or even lied to. A significant part of the asbestos industry, represented by the member companies of the Asbestos Textile Institute, described their management-only information strategy this way:
"...this subject should not be brought to the attention of other than management of our several companies, as any general discussion on this situation by sales personnel with users of our products, could possibly aggravate the situation and result in individual opinions which could be damaging."
[Source: Asbestos Textile Institute memo 11/6/64]
Even work histories on deceased employees were deemed top secret
In 1966, DuPont hoped a company doctor examining an "expired" worker's history of asbestos exposure would keep a lid on the information he was asked to produce for the company:
"We have on record that [blacked out name] a 36 year old employee of your plant expired sometime in 1964 from mesothelioma of the pleura.
Please do a careful investigation and let me know if this individual was ever exposed to asbestos in our employ, how long he was, in what type of work, or any other information that may be available. If at all possible, try to ascertain whether there is any information that this individual worked as a roofer, pipe coverer or any other type of asbestos exposure prior to joining Du Pont. This inquiry is for our own edification only, as no one outside of the Company has raised the question.
We are hopeful you will keep this information most confidential, and let me have your reply as soon as possible. Thank you for your cooperation."
— 1966 DuPont internal memo [View document]
Keeping employees in the dark meant leaving no stone unturned, even if it meant putting pressure on outside physicians. In November, 1980, DuPont sent a letter to a doctor asking him to remove the word asbestos from a rubber stamp used to mark X-rays which show changes in lung tissue, perhaps due to asbestos exposures. DuPont requested that the language of the stamp, which read "could be due to previous exposure to asbestos or other irritant materials" be changed to "could be due to previous exposure to irritant materials."[View document]
For at least 50 years, from the 1930s through the 1980s the unswerving goal of asbestos users and makers was to keep from workers the undisputed fact that asbestos was a major threat to their health. An internal memo from a W.R. Grace executive summed up the strategy quite clearly:
"The point I am trying to get across is that our present policy is to tell no one anything, no visitors, or discussion of our operations, period."
— 1972 W.R. Grace internal memo [View document]
Objective science was a big problem for the industry because it repeatedly showed how extraordinarily dangerous asbestos really was. In response, the industry manipulated results and eviscerated papers in largely successful efforts to bury or obscure results that might damage the bottom line. Some companies simply stopped conducting studies at all, knowing what the results would be and fearing that the public might find out.
A 1948 memo from a New York University professor of industrial medicine, himself a former Metropolitan Life Insurance Company employee, revealed that a report summarizing studies conducted by NYU College of Medicine scientists was revised prior to publication at the request of Metropolitan Life Insurance and other asbestos insurance companies in order to omit references to cancer:
"A meeting of the representatives of the underwriting companies was held in New York... It was the feeling of this group that all references to cancer or tumors should be omitted... It was decided that after these revisions have been concluded the report of these experimental studies should be published as promptly as possible, preferably in the Journal of Industrial Hygiene. Any report on human asbestosis should be separate and not a part of this report."
— 1948 NYU College of Medicine memo [View document]
In November 1948, a year after receiving promising results that their Kaylo asbestos product hadn't produced negative health effects in experiments on lab animals, Owens-Corning received a discouraging letter from the lab that had performed the tests. The lab's initial clean bill-of-health finding was premature, and in fact the animals had developed asbestosis as more time elapsed. In conclusion the lab wrote to the company:
"I realize that our findings regarding Kaylo are less favorable than anticipated. However, since Kaylo is capable of producing asbestosis, it is better to discover it now in animals rather than later in industrial workers. Thus the company, being forewarned, will be in a better position to institute adequate control measures for safe-guarding exposed employees and protecting its own interests."
— 1948 Owens-Corning memo [View document]
Yet, decades later in 1970, intra-company correspondence shows that Owens-Corning was still reluctant to properly label the product to indicate health hazards from asbestos:
"...regarding the warning label that should appear on Kaylo. Are you saying that we have to do this now? I naturally would like to delay this requirement as long as possible."
— 1970 Owens-Corning memo [View document]
A March 30, 1977 memo from a W.R. Grace health and safety official advised against conducting further study of asbestos-diseased workers out of concern that the information would become public:
"I believe that the results of a study of this nature would become public knowledge within a relatively short period of time regardless of confidentiality agreements. If we are not prepared to deal with that situation, I would advise against proceeding."
— 1977 W.R. Grace memo [View document]
Keeping information from consumers
Companies with significant asbestos sales used extreme measures to keep their customers in the dark about the risks of using asbestos products. The intimidation tactics and reassuring messages used by these companies no doubt led to complacency about asbestos hazards on the part of consumers, contributing to the incidence of clearly avoidable asbestos diseases now emerging among the general public.
In a 1970 W.R. Grace memo regarding sales of its Mono-Kote fire-proofing spray product, which contained twelve percent asbestos, an employee urged:
"Stay unscrupulous, unethical, mean and selling Mono-Kote."
According to a New York Times investigation of Grace's Monokote product, the company continued selling "re-formulated" Monokote until the late 1980s, labeling it "asbestos-free" despite its knowledge that the product still contained up to 1 percent asbestos. Grace management instructed employees that inquiring customers were to be told the product did not contain any asbestos. Due to Grace's "asbestos free" claim, workers using Monokote stopped wearing protective respirators, believing the reformulated product was safe [The New York Times, 7/9/01].
A 1972 Union Carbide memorandum instructed managers to handle inquiries from concerned customers aggressively:
"If the customer is persistent and threatens to eliminate asbestos — a certain amount of aggressiveness may be effective. Words and catch phrases such as "premature", "irrational" or "avoiding the inevitable" will sometimes turn the table. The main objective is to keep the customer on the defensive, make him justify his position."
— 1972 Union Carbide memo [View document]
A year later, Union Carbide management instructed its sales personnel that customers should be told "asbestos is not a carcinogen." [View document]
In 1973, Union Carbide's own medical department advised the company to stop belittling the dangers of asbestos exposure in marketing literature for asbestos products, noting several "misleading" and "half truth" statements in the company's literature. Company doctors referenced government studies indicating asbestos exposures "as short as one day" had produced lung disease, contrary to the company's assertion that "massive long term exposure to asbestos" was required to produce asbestos diseases. [View document]
Manipulating the media
As word began to trickle out to the mainstream media about the appalling hazards of asbestos, controlling information flow and manipulating the media became a top priority for the industry. In June 1973, at a meeting of the Asbestos Textile Institute, asbestos industry representatives predicted the deaths of tens of thousands of employees from asbestos disease, and then noted that "the good news" was that the public was still vastly unaware of the problem.
The meeting's guest speaker, an executive from the Asbestos Information Association, began his presentation by laying out the facts:
"First, there is no doubt that the inhalation of substantial amounts of asbestos can lead to increased rates of various types of lung disease, including two forms of cancer. These are facts which cannot be denied, even if they do not apply in all circumstances and under all conditions. The medical literature is full of solid evidence linking asbestos to disease. In my office, I have on file more than 2,000 medical papers dealing with the health risks of asbestos and hundreds more are published every year."
— 1973 Asbestos Textile Institute memo
The presenter plainly stated that insulation workers "were and still are dying from asbestos disease at an appalling rate." [View document]
Figures were put forward about what the industry expected to happen to its workers:
"Our prediction is that approximately 25,000 past and present employees in the asbestos industry have died or will eventually die of asbestos-related disease."
— 1973 Asbestos Textile Institute memo
[Excerpt | Full document]
Then came the "good news:"
"And the good news is that despite all the negative articles on asbestos-health that have appeared in the press over the past half-dozen years, very few people have been paying attention."
— 1973 Asbestos Textile Institute memo
[Excerpt | Full document]
Finally, the guest speaker laid out his thoughts about media coverage of asbestos issues:
"The press relations battle will therefore be won, not when the media starts to print positive or balanced articles about asbestos, but when the press ceases to print anything about asbestos at all. As long as negative news on asbestos-health continues to be generated, the media will continue to eat it up. The media will only cease to carry such stories when the generation of negative news ceases. It is as simple as that. Positive or balanced stories are a chimera, since they are, by definition, not newsworthy."
— 1973 Asbestos Textile Institute memo
[Excerpt | Full document]
Anticipating a government investigation into its widespread knowledge of the dangers of asbestos, the industry worried internally and began to ready its defenses. A 1981 Dow internal memo marked "CONFIDENTIAL" had the following note scrawled across the top by a worried executive:
"We are in trouble and would be more so if we had an investigation. We need a crash program."
— 1981 Dow confidential memo [View Document]
1. Bowker, Michael. (2003). Fatal Deception: The Terrifying True Story of How Asbestos Is Killing America. Touchstone Books, New York.
2. Brodeur, Paul. (1985). Outrageous Misconduct: The Asbestos Industry On Trial, Pantheon Books, New York.
3. Hoffman, F. (1918). "Mortality from Respiratory Diseases in Dust Trades." U.S. Department of Labor Bulletin 231, pg. 178.
4. The New York Times. (7/9/01). "PROTECTING THE PRODUCT: A special report; Company's Silence Countered Safety Fears About Asbestos" By Michael Moss and Adrianne Appel.
5. Michelbacher, G.F. (1942). Casualty Insurance Principles. McGraw-Hill Books, New York.
Millions Were Exposed — Were You?
"Take home" exposure
Not all of the victims of asbestos are workers, particularly for mesothelioma, the signature and 100 percent fatal asbestos cancer. People hurt or killed by asbestos include the families of the men and women who work with asbestos, the communities that surround current and former asbestos mines, products factories and shipyards, and consumers who innocently exposed themselves and family members to asbestos through products like hair dryers, electric blankets, attic insulation, home siding and ceiling and floor tiles and many more.
Fatal mesothelioma in the families of asbestos workers is the most well-described and prevalent form of non-occupational asbestos mortality. Mesothelioma is unique among asbestos cancers in that it can be caused by very short-term exposures. In approximately three percent of cases, mesothelioma is diagnosed in workers with less than three months exposure; the shortest on record is 16 hours (Leigh 2003). A laboratory animal study published in 1974 also reported that a single high level exposure to at least one type of asbestos, amosite, may be enough to cause mesothelioma in rats (Wagner 1974). One review describes mesothelioma in a person who reported his total lifetime asbestos exposure as one day of sawing up asbestos cement sheets to build two sheds (Greenberg, 1974).
For profiles of mesothelioma victims see The Mesothelioma Applied Research Foundation.
A 1967 summary of 42 mesothelioma cases reported by 152 hospitals in southeastern Pennsylvania showed that 21 percent of cases occurred in people who either lived or worked near a plant that used asbestos, and 26 percent occurred where family members were asbestos workers (Lieben, 1967). An estimated 6.7 percent of mesothelioma cases reviewed in a 1966 survey in the United Kingdom (London, Belfast and Liverpool) were linked to take home and neighborhood exposures.
An EWG Action Fund analysis of government asbestos mortality data for mesothelioma found that from 1985 through 1999, "non-paid worker at own home" was the top ranked business classification on death certificates for mesothelioma. Presumably most of these cases were housewives and family members who died from mesothelioma after they were exposed to asbestos brought home by a parent, spouse, or family member who worked with it.
Hundreds of housewives and family members were killed by "take home" asbestos exposures
Non-paid worker or non worker at home
Elementary and secondary schools
General government, n.e.c.
Not specified manufacturing industries
Eating and drinking places
Ship and boat building and repairing
Agricultural production, crops
Yarn, thread, and fabric mills
Industrial and miscellaneous chemicals
Electric light and power
Blast furnaces, steelworks, rolling and finishing mills
Source: EWG Action Fund. Compiled from Centers for Disease Control and Prevention (CDC), National Center for Health Statistics (NCHS), multiple cause of death file 1985-1999.
A business classification was assigned to just 3,603 of the 14,500 people who were estimated or reported to have died of mesothelioma between 1985 and 2001. If these 3,603 deaths represent the distribution of mesothelioma deaths across businesses represented by all 14,500 cases, then it would appear that about one quarter of all mesothelioma mortality occurs in people who did not work directly with asbestos, but instead worked in environments where asbestos was present, or lived with people who brought asbestos home with them.
A small number of family members of asbestos workers have successfully pursued compensation through the courts. Of the 107,000 client records received by EWG Action Fund from plaintiffs' attorneys, 882 individuals were exposed at home. Of this number, which accounts for less than one percent of total victims represented, 56 developed lung cancer, 77 developed mesothelioma, 672 developed asbestosis, and 77 had other diagnoses.
Passive workplace exposure — schools and hospitals
The same EWG Action Fund analysis of federal mortality data found that five of the ten most commonly recorded industries on death certificates do not have any well-established connection to occupational asbestos exposure. These cases are either due to passive asbestos exposure in the work environment, as with the teachers described above, or because of relatively brief occupational exposures decades ago. Death certificates do not reflect a person's work history. It is not uncommon for an office worker to contract mesothelioma, and only upon detailed questioning recall that decades earlier he or she worked around asbestos in some short-term employment.
Older public buildings where asbestos may be decaying and slowly drifting into indoor air is another major concern. The EPA estimated in 1982 that more than 720,000 public buildings had significant amounts of asbestos in them. Leaving aging asbestos in place is no guarantee of safety, and removing it can be highly dangerous if not done carefully. There is substantial evidence that much asbestos removal does not meet federal standards.
County: Homeless Removed Asbestos
Tampa Bay Online, Feb 8, 2004
Laborers Face A Lifetime Of Health Worries
Long Island Newsday, February 7, 2004
Father and Son Faked Removal of Asbestos, Workers Say
The New York Times, February 3, 2004
http://www.nytimes.com/2004/02/03/nyregion/03asbestos.html (registration required)
One key at-risk group is schoolteachers, who may have received significant exposure to asbestos from soundproofing and fireproofing of ceilings and walls. 'Elementary school teacher' was the eighth most frequently listed occupation on mesothelioma death certificates (NCHS, 2003). Elementary and secondary schools ranked third among all businesses reporting mesothelioma cases. Hospitals ranked fourth. In the late 1970s, it was estimated that two to six million school children and 100,000 to 300,000 teachers had been exposed to asbestos in schools (Nicholson, 1979). A 1991 review describes four teachers with fatal mesothelioma, "...who worked in schools that were insulated with asbestos and who had no other known exposure to this mineral" (Lilienfeld 1991).
A mesothelioma case report published in the journal Respiratory Medicine in 1989 describes a 54-year old woman whose only identifiable asbestos exposure occurred in the office. As explained by the study authors, the ceilings in the building where she worked for 14 years "were sprayed with an inch thick layer of soft asbestos covered by a layer of paint. This evidently deteriorated rapidly, since as a result of complaints about dust in the offices, the ceilings were sealed, repaired and repainted about eight years after the building was constructed" (Stein 1989).
In 1980, the Consumer Products Safety Commission removed similar asbestos ceiling material from its headquarters in Bethesda, Maryland. The agency described the associated risk this way:
"CPSC believes that any exposure to asbestos may involve some increase of risk; no safe level of exposure or so-called "threshold level" has been established. It is impossible to estimate with any precision the exact degree of risk associated with any low-level exposures."
Living near asbestos products factories can be as dangerous as having family members who work at the plant. A 1967 summary of 42 mesothelioma cases in southeastern Pennsylvania showed that 21 percent of cases occurred in people who either lived or worked near a plant that used asbestos, and 26 percent occurred where family members were asbestos workers (Lieben, 1967). An estimated 6.7% of mesothelioma cases reviewed in a 1966 survey in the United Kingdom (London, Belfast and Liverpool) were linked to take home and neighborhood exposures.
In Libby, Montana, the site of the notorious W.R. Grace vermiculite mine, entire families have been diagnosed with asbestos-related diseases, when just one family member, usually the father, worked at the mine and brought home asbestos dust on his clothes. Children in Libby have developed mesothelioma and asbestosis as adults from playing in vermiculite slag heaps scattered through the town.
The federal government has identified 28 former asbestos manufacturing sites as priority locations for community-wide evaluations of asbestos disease because these sites received approximately 80 percent of the asbestos in Libby from 1964 through 1990 [View maps]. EPA estimates that 30 million homes have asbestos (vermiculite) attic insulation made at processing plants all across the country.
Federal officials have expressed serious concern about the risks for community residents living near these facilities. "It's like a ticking time bomb inside your chest," said an official with the federal Agency for Toxic Substances and Disease Registry describing a priority vermiculite processing site in Beltsville, Maryland (Washington Post 10/3/03). Madelene Audia, who lives about 150 yards from a former vermiculite plant in Dearborn, Michigan, recalled dust wafting through the neighborhood in the 1960s and 1970s. It settled in homes and on the local ball field where her two children played almost every day. "It would get so bad you couldn't go outdoors," she said (Detroit Free Press 1/22/04).
In 1997, Dr. Michael Berry, a scientist at the New Jersey Department of Health and Senior Services, published a study that investigated mesothelioma incidence in people who lived in the same town (Manville, NJ) or county (Somerset) as the largest asbestos manufacturing plant in North America (Berry, 1997). When plant employees were removed from the analysis, male and female residents of Manville were 10.1 and 22.4 times more likely to develop mesothelioma than residents of New Jersey not living in Somerset county. In all, 24 cases of mesothelioma occurred between 1979-1990 when only 2 would have been expected. Men and women living in Somerset county as a whole were 1.9 and 2 times as likely to develop the disease, a statistically significant increase (58 cases were observed and approximately 30 were expected).
Consumer product exposure
Tens of millions of people were exposed to asbestos through hundreds of common consumer products including hair dryers, electric blankets, heat guns, molding clay, dry wall patch, attic insulation, pipe wrap insulation, fake fireplace logs and many more. Some of these products were banned by the Consumer Products Safety Commission (CPSC). Many were not. The most notorious asbestos product that was never banned by the CPSC is vermiculite (asbestos) attic insulation, from the vermiculite mine in Libby, Montana. Vermiculite, which is contaminated with one of the most potent forms of asbestos, tremolite, was shipped around the country and processed into attic insulation and other products through 1992. EPA estimates that 30 million homes have asbestos (vermiculite) attic insulation made at processing plants all across the country [View maps]. When disturbed through home renovation or other causes, this insulation will produce significant and hazardous asbestos exposures.
Consumer products containing asbestos present grave and lingering risks to the millions of people who used them, but in general had no idea they were being exposed to cancer causing asbestos in the process. In 1979, the Consumer Products Safety Commission characterized the risk this way:
Although worker exposure to asbestos fibers on the job is regulated by the Occupational Safety and Health Administration (OSHA), CPSC believes that asbestos fibers released from consumer products may pose unique problems in households. The household environment may harbor these fibers for long periods, and they may be repeatedly stirred up into the air after having settled to a surface. Infants and children in the home are likely to be exposed, and this environment, unlike the workplace, is not equipped with protective clothing or control systems for asbestos fibers.
(CPSC 8/31/79 Commission To Study Asbestos In Consumer Products)
Asbestos in blow dryers
Perhaps no consumer product better symbolizes the 1970s than the hand-held blow dryer. As it turns out, these hair dryers were not only puffing coifs, but also hurling asbestos fibers into the indoor environment. This extraordinary hazard was discovered entirely by accident, when a photographer using a blow dryer to dry negatives noticed tiny flecks of dust on his negatives. The revelation that this "dust" was actually asbestos led the CPSC to pressure manufacturers to voluntarily stop using asbestos in all hair dryers, though it was never officially banned. CPSC described the risk at the time as less than "many" occupational asbestos exposures, but by implication, presumably greater than others:
"While the risk to an individual from the intermittent use of an asbestos-emitting hair dryer is less than that from many current occupational asbestos exposures, the large number of individuals that may be exposed clearly calls for the elimination of the exposure."
An incredible array of products brought asbestos into the home in the not so distant past. Links to CPSC announcements of bans on selected asbestos-containing consumer products are listed below, followed by a partial list of asbestos-containing consumer products as of about 1980.
Heat Guns (used by model airplane hobbyists)
Artificial Fireplace Ash
Consumer Patching Compounds
(used to cover up holes and cracks on interior walls of houses)
Asbestos paper (used primarily to insulate ducts and pipes)
· Barbecue fire starters (electric)
· Deep Fryers
· Frying pans and grills (electric)
· Mixers (electric)
· Popcorn poppers
· Ranges and ovens
· Slow cookers
· Clothes washers and dryers
· Curling irons (electric)
· Electric blankets
· Heaters, portable electric
· Texture paint
· Asbestos paper (including asbestos paper tape) and millboard (i.e., in rolls or sheets) for consumer use, including but not limited to such uses as (This category does not include paper and millboard sold as a component of another product).
· Wall protection behind heat-generating products
· Floor protection under wood and coal stoves
· Soldering and welding blocks or sheets
· Pipe insulation
· Airduct insulation
· High-temperature wallboard
· Iron rests and burner mats; barbecue mitts, pot holders and similar items
· High-temperature gaskets for wood and coal stoves (including fireplace inserts)
· Stovepipe rings
· Safes, Kilns, safety boxes, filing cabinets, and incinerators
(All from www.cpsc.gov/CPSCPUB/PREREL/prhtml80/80021.html)
Asbestos is still not banned
Although the CPSC took action against the use of asbestos in many consumer products, asbestos is still not banned and is still used widely for certain applications. The 2001 Mineral Commodity Summary for Asbestos from the U.S. Geological Survey (USGS) reported 61% of the asbestos used in the United States (in 2000) was in roofing products, 19% in friction products, 13% in gaskets, and 7% was classified as 'other'.
(EPA's main asbestos page is: www.epa.gov/asbestos/)
Even today, almost none of the products containing asbestos are labeled as such. This clearly makes it difficult for consumers to choose products that are asbestos-free. According to the CPSC, as of May 2003:
"The extent of current asbestos product labeling is limited. Except for products which are sold unwrapped, such as millboard; and asbestos-cement sheet, all products are labeled with the name of the manufacturer or distributor. Only asbestos paper and furnace cement are labeled as containing asbestos. Non-asbestos substitutes for all asbestos products are widely available to the public for household uses."
(CPSC May 28, 2003, CANCER HAZARD! CPSC Warns About Asbestos in Consumer Products: Safety Alert) www.cpsc.gov/CPSCPUB/PUBS/5080.html
A partial list of products that still contain asbestos can be found at: www.epa.gov/earth1r6/6pd/asbestos/asbmatl.htm
It is presented below as well.
"Asbestos Containing Materials: Sample List of Suspect Asbestos-Containing Materials"
· Cement Pipes
· Elevator Brake Shoes
· Cement Wallboard
· HVAC Duct Insulation
· Cement Siding
· Boiler Insulation
· Asphalt Floor Tile
· Breaching Insulation
· Vinyl Floor Tile
· Ductwork Flexible Fabric Connections
· Vinyl Sheet Flooring
· Cooling Towers
· Flooring Backing
· Pipe Insulation (corrugated air-cell, block, etc.)
· Construction Mastics (floor tile, carpet, ceiling tile, etc.)
· Heating and Electrical Ducts
· Acoustical Plaster
· Electrical Panel Partitions
· Decorative Plaster
· Electrical Cloth
· Textured Paints/Coatings
· Electric Wiring Insulation
· Ceiling Tiles and Lay-in Panels
· Spray-Applied Insulation
· Roofing Shingles
· Blown-in Insulation
· Roofing Felt
· Fireproofing Materials
· Base Flashing
· Taping Compounds (thermal)
· Thermal Paper Products
· Packing Materials (for wall/floor penetrations)
· Fire Doors
· High Temperature Gaskets
· Laboratory Hoods/Table Tops
· Laboratory Gloves
· Fire Blankets
· Joint Compounds
· Fire Curtains
· Vinyl Wall Coverings
· Elevator Equipment Panels
· Spackling Compounds
1. Berry, M. (1997). "Mesothelioma incidence and community asbestos exposure." Environ Res 75(1): 34-40.
2. Detroit Free Press. (1/22/04). "Dearborn factory spewed asbestos; U.S. is probing how widely the danger spread." by Hugh McDiarmid Jr.
3. Greenberg, M. and T. A. Davies (1974). "Mesothelioma register 1967-68." Br J Ind Med 31(2): 91-104.
4. Lieben, J. and H. Pistawka (1967). "Mesothelioma and asbestos exposure." Arch Environ Health 14(4): 559-63.
5. National Center for Health Statistics (NCHS) (2003). "Multiple Cause of Death files, 1985-1999."
6. National Institute for Occupational Safety and Health (NIOSH) (2002). "Work-related lung disease surveillance report." Division of Respiratory Disease Studies.
7. Nicholson, W. J., E. J. Swoszowski, Jr., et al. (1979). "Asbestos contamination in United States schools from use of asbestos surfacing materials." Ann N Y Acad Sci 330: 587-96.
8. Occupational Safety and Health Administration (2004). "Safety and Health Topics: Asbestos." Viewable on the web at: www.osha.gov/SLTC/asbestos/index.html
9. Stein, R.C., J.Y. Kitajewska, et al. (1989). "Pleural mesothelioma resulting from exposure to amosite asbestos in a building." Journal of Respiratory Medicine 83: 237-39.
10. The Washington Post. (10/3/03). "Md. Workers Are Warned About Asbestos; Former Beltsville Plant's Employees and Others Were Exposed to Toxic Material." by Avram Goldstein.
The Failed EPA Asbestos Ban
Asbestos manufacturing and sale of asbestos-containing goods is still legal in the US
Although public health professionals had long been aware of the deaths and illnesses related to asbestos exposure, it wasn't until the early 1970s that asbestos garnered the attention of the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA). As the agencies began to take note of existing and developing science and epidemiology regarding asbestos-related health hazards, they started to issue safety standards and regulations of the dangerous fiber. In 1971, EPA promulgated an emissions standard under the Clean Air Act. A year later, OSHA put forth an occupational standard, which got progressively more protective over the course of the decade.
What's still sold
In 1991, the U.S. Fifth Circuit Court of Appeals overturned what was commonly known as the "Asbestos Ban and Phaseout Rule of 1989." Consequently, scores of asbestos products remain on the market today.
In spite of the court's action, a short list of products remain banned under the Toxic Substances Control Act (TSCA) and the Clean Air Act. These include: corrugated paper, rollboard, commercial paper, specialty paper, flooring felt, sprayed-on materials containing more than one percent asbestos, and all new asbestos applications are banned.
EPA and OSHA regulations of asbestos remained limited in their reach when EPA decided in 1979 to issue a notice of its intent to regulate asbestos under the authority of Section 6 of the Toxic Substances Control Act (TSCA). Because an absolute ban is possible under TSCA, the potential for a ban became imminent, and asbestos producers and the Canadian government began to pressure the Reagan Administration's Office of Management and Budget (OMB) to halt EPA's efforts. Canada took a particular interest in the matter because 95 percent of the 85,000 tons of asbestos used in the United States at the time came from Canada, primarily Quebec (Kriz, Good Riddance, 1989; Canada Reportedly Pushing Asbestos Exports to US, Asbestos and Lead Abatement Report 2000). EPA officials eventually succumbed to this pressure, and, in 1984, announced that EPA would refer the asbestos issue to OSHA and the Consumer Product Safety Commission (CPSC) (BNA 1985; AP 1985). Notably, CPSC had not taken any significant action to limit asbestos exposure in consumer products since 1982. EPA employees were outraged by the decision, and issued a public letter of protest. In the face of this public pressure, EPA reversed its position again and decided to support the ban (McGarity, 1994, at 952-54; AP 1985).
In 1989, after conducting a ten year study, spending ten million dollars, and accumulating a 100,000 page administrative record, EPA announced that it would phase out and ban virtually all products containing asbestos. (54 Fed. Reg. 29,460 (1989); Stadler, 1993, at 423). The ban applied to the manufacture, import, processing and distribution of asbestos products. It would affect 94% of all asbestos consumption, including a ban of asbestos-containing products like brake linings, roofing, pipes, tile, and insulation. EPA's stated rationale for the ban was simple: "asbestos is a human carcinogen and is one of the most hazardous substances to which humans are exposed in both occupational and non-occupational settings." (54 Fed. Reg. 29,460, at 29,468 (1989)). An apparent victory in the nearly 20-year struggle to protect the public from asbestos exposure, and promising use of TSCA as a tool to protect public health, the EPA ban would ultimately fail to overcome the vigorous campaign to perpetuate the use of asbestos.
From the outset, the measure met with fierce opposition. Citing job loss and potential economic ruin, asbestos industry supporters referred to the ban as "death by regulation." Asbestos product manufacturers and industry organizations swiftly filed a lawsuit challenging the ban's validity under TSCA in Corrosion Proof Fittings v. EPA. They sought to overturn the ban, claiming that it was too costly and that the alternatives were neither more effective nor safer than asbestos. The Canadian Federal Government and the Province of Quebec sought to join in the case, but were denied due to lack of standing. EPA defended the ban, arguing that a ban was necessary to address the unreasonable risk of harm imposed by the continued use of asbestos.
In a seminal decision, the Fifth Circuit vacated the ban, finding that EPA failed to present "substantial evidence" to justify the ban under TSCA. Despite its acknowledgment that "asbestos is a potential carcinogen at all levels of exposure," the court attacked the EPA's action on several fronts. The court determined that the agency's administrative record failed to demonstrate that the ruling was the "least burdensome alternative" for eliminating the "unreasonable risk" of exposure to asbestos, as required by TSCA. The court questioned EPA's analysis of product substitutes, finding that the proposed substitutes were unavailable or potentially harmful (Corrosion Proof Fittings v. EPA, at 1220). The court also rejected EPA's cost/benefit analysis, challenging EPA's consideration of "unquantifiable benefits," and dismissing EPA's determination with respect to the presence of unreasonable risk (18 Am. L. J. and Med. 395).
The Fifth Circuit's decision has been called a "tragedy for the EPA," for it is seen as having "place[d] seemingly impossible analytical requirements on [government] agencies." (Stadler, 1993, at 433; Percival, 1997, at 521). Scholars note that the ruling in "Corrosion Proof Fittings reaches beyond asbestos regulation, restricting the EPA's ability to regulate the use of any toxic substance under TSCA." The holding indeed poses a serious question: If EPA can't ban a known carcinogen, at which no level of exposure is safe, how can EPA regulate any toxic substance?
Even more disturbing than the Fifth Circuit ruling was the decision by the first Bush Administration not to appeal the case. After ten years of research and deliberation, millions of dollars poured into the regulation, and countless hours of work by environmental health officials, the asbestos ban was completely abandoned. The ruling left room for EPA to reconcile its research in accordance with the court's reasoning, but no further action was pursued. EPA did not persist in its decision to eliminate the "unreasonable risk" posed by asbestos. Instead, the public was left to bear the burden. Products containing asbestos are still sold and manufactured in the United States today.
· Final Rule: Asbestos: Manufacture, Importation, and Distributions in Commerce Prohibitions, 54 Fed. Reg. 29,450 (1989)(to be codified at 40 C.F.R. pt. 763)
· Linda Stadler, Corrosion Proof Fittings v. EPA: Asbestos in the Fifth Circuit—A Battle of Unreasonableness, 6 Tul. Envtl. L. J. 423(1993).
· Corrosion Proof Fittings, et al. v. The Environmental Protection Agency and William K. Reilly, Administrator, 947 F.2d 1201 (5th Cir. 1991).
· EPA to Shift Responsibility to OSHA, CPSC; Plans to Refer Other Chemical Regulations, 13 Prod. Safety & Liab. Rep. (BNA) No. 29, at 73 (July 19, 1985).
· Thomas O. McGarity, Radical Technology-Forcing in Environmental Regulation, 27 Loy. L.A. L. Rev. 943, 952-54 (1994).
· Robert V. Percival, American Association of Law Schools Conference: Responding to Environmental Risk: A Pluralistic Perspective, 14 Pace Envtl. L. Rev. 513, 520-21 (1997).
Tiny Amounts are Deadly
[Excerpt | Full document]
No one is in favor of compensating individuals for a disease or injury they do not have. But asbestos diseases, particularly the early stages of asbestosis, do not lend themselves to a simple diagnosis. For asbestosis, which is progressive and in many cases fatal, the absence of observable physical impairment by X-ray or other measures is no guarantee that the disease is not present and that significant damage has not already occurred. A person may have lost more than 25 percent of their lung capacity due to scarring from asbestos and have no observable damage at all.
Diagnosing early stage asbestosis is a multifaceted procedure. Specialized reading of X-ray results is just one of five components of a complete diagnosis that typically involves an evaluation of pulmonary function, documentation of a history of asbestos exposure, shortness of breath, and clubbing of fingers.
The original X-ray reading system for workers exposed to asbestos was devised by the National Institute for Occupational Safety and Health and involved four different specialists, called B readers, reading and classifying X-rays independently. The outlier result, most often the most severe classification, was then discarded, and the classification for the individual was derived as the average of the remaining three ratings. A diagnosis was not considered complete, however, until a full evaluation, including all the components listed above, was performed.
Today's "unimpaired" asbestos worker could easily be tomorrow's mortality statistic. Any asbestos compensation fund set up by the Congress must account for this medical fact and not deny, delay, or complicate future assistance based on current lack of impairment.
Policies to protect potential asbestos victims must be flexible and inclusive because:
· Bodily injury begins with the first inhalation of asbestos fibers, yet lung damage from asbestos cannot be detected by X-ray until an estimated 30 percent of lung capacity has been lost. Inability to detect damage via X-ray does not mean that a person does not have the disease.
· Asbestosis is a progressive disease. Twenty-eight (28) to 38 percent of persons with the disease progress to a more severe classification within 2 to 10 years (Markowitz 1997).
· People with early stage asbestosis, many of whom would be classified as unimpaired in the proposed Senate legislation, are at substantial risk for lung cancer or mesothelioma. In the definitive study of asbestos insulation workers, 30 percent of workers with no X-ray evidence of lung damage (a zero classification on the ILO system) died of mesothelioma or lung cancer within 27 years of the initial diagnosis. Those with "minimal X-ray change" fared even worse. Nearly 40 percent (39.9 percent) of individuals initially diagnosed as ILO classification 1, died of these two cancers within the 27 years analyzed. [View document]
If unimpaired people are in fact being compensated, the compassionate response is to upgrade the quality of diagnoses, not to deny compensation to entire categories of individuals based solely on X-ray classifications.
But in fact it is not at all clear that so-called "unimpaired" people are having any significant impact on compensation. David Austern, General Counsel for the Manville Trust, estimates that between two thirds and three quarters of the 200,000 non-cancer claims brought before the Trust were legitimate Level II cases, a clearly impaired asbestosis diagnosis [View document]. An analysis of insurance industry data on compensation awarded under the Babcock and Wilcox asbestos trust found that 70 percent of claims qualified as substantial impairment or greater (Peterson 2003b). The rest were simply not paid.
Perhaps a more serious concern is that very few asbestos workers ever step forward and seek any compensation at all. Most die with or from their disabilities and diseases, leaving their families bearing the brunt of medical costs as well as the emotional strain of a prolonged and preventable illness. A great number of experts, particularly those not employed by defendant companies, feel that misdiagnoses of asbestosis cases are a significant source of underreporting bias (Markowitz 1997). Many, and perhaps even the majority, of workers with asbestosis are misdiagnosed with emphysema or other respiratory ailments.
Between 1940 and 1979, an estimated 27.5 million workers were exposed to asbestos at work, and in 18.8 million workers exposure levels would be considered high (Nicholson 1982). Millions more have been exposed since then. For some jobs, asbestos levels would routinely exceed the current OSHA guidelines by 200 to 400 times (Welch 2003). An extremely high percentage of workers in asbestos-exposed occupations will develop some form of asbestos-related disease. A 1980 estimate of potential asbestos claims by the American Insurance Association (AIA) noted that "lung cancer deaths occur in approximately 20-25 percent of all deaths of asbestos workers, and mesothelioma deaths in 7-10 percent of all deaths of asbestos workers..." [Excerpt | Full document ]. This same document estimated that 25 to 33 percent of potential claims from exposed workers in 14 industries would be based on asbestosis. [Excerpt | Full document ]
Worker monitoring confirms these projections. Thirty-eight percent of pipe insulators in ship construction develop asbestosis 20 years after first exposure (Department of Health and Human Services 1978); 27 percent of asbestos exposed construction workers had radiographic evidence of asbestosis (Kilburn 2000). Although today's workers breathe less asbestos than workers prior to 1980, it is exposures 20 and 30 years ago that are producing casualties today.
Just 730,000, or 2.5 percent, of the 27.5 million workers exposed on the job to asbestos through 1978, have filed suit for compensation.
Deterioration from a diagnosis of "unimpaired" to death can be relatively rapid, even for non-cancer outcomes. Almost one in a hundred (0.9%) North American insulators with normal baseline X-rays [International Labor Office (ILO) Category 0] followed for ten years died due to asbestosis (Markowitz 1997). Insulation workers in ILO category 1, the least severe asbestosis classification, have a 2.4 percent risk of dying from the disease within ten years (Markowitz 1997).
People at these early stages typically do not have any evidence of a functional impairment, meaning that they do not experience symptoms such as shortness of breath, coughing, chest pain and tightness. Only later, when the disease has progressed to the point of reducing lung capacity by more than 30 percent do people begin to notice symptoms.
Once a diagnosis has been made, asbestosis typically progresses to increasingly serious stages. In what has become a classic memo, Dr. Kenneth Smith, the medical director at Johns Manville stated, "The fibrosis of this disease is irreversible and permanent..." (Brodeur 1985, pg. 102).
Estimates from a Finnish cohort of asbestosis cases found that the disease progressed to a more severe form in 28 to 38 percent of patients during a two to ten year follow-up (Oksa 1998). Selikoff's classic study of insulation workers shows that the number of asbestos insulation workers with ILO categories 2 and 3 greatly increased in the decades following first exposure, reaching 65 percent after 40 years (Selikoff 1976).
Asbestosis is a Progressive Disease
Years since exposure
Asbestosis Diagnosis by ILO classification (Percent)
2 & 3
(Modified from Selikoff, 1976, as cited in Walker, 1983).
If asbestosis becomes severe, classified in ILO category 3, 35 percent of insulation workers will die from the disease within ten years (Markowitz 1997). One third of workers with advanced asbestosis (ILO categories 2 and 3) will die of lung cancer (Selikoff 1990).
Additional research links asbestosis progression with lung cancer. In a ten-year Finnish study, risk of lung cancer increased dramatically if asbestosis progressed during the period analyzed; approximately 46 percent of progressors developed lung cancer compared to nine percent of patients whose asbestosis did not progress. All lung cancer cases were current or former smokers (Oksa 1998b). According to an insurance industry association (AIA) review, approximately 50 percent of patients diagnosed with asbestosis will die of or with lung cancer. [Excerpt | Full document]
More than one third of asbestos insulation workers diagnosed as "unimpaired" died from asbestos disease within 27 years. (Selikoff 1990).
Cause of Death After 27 Years
Initial Diagnosis ILO category
Initial Diagnosis ILO category
(1/0, 1/1, 1/2)
Initial Diagnosis ILO categories
2 and 3
Total Asbestos-related deaths
Percent who progress to higher stage
28 to 38% within 2 to 10 years (Oksa 1998)
Asbestos industry and insurance experts readily acknowledge in court proceedings that asbestos fibers begin causing tissue or cellular damage shortly after asbestos fibers are first deposited in the lung and that the disease is progressive and irreversible. These experts also agree that the disease is typically diagnosed only in the advanced stages.
"The undisputed medical facts [are that] ... [a]ctual bodily injury, in the form of tissue or cellular damage caused by lodged asbestos fibers, begins shortly after such fibers are first inhaled."
(Source: Pittsburgh Corning Corporation, 1984, at 8.)
"injury and the onset of fibrosis occur soon after the initial deposition of asbestos fibers in the lung ...is supported by the overwhelming weight of the medical evidence."
(Source: Armstrong World Industries, Inc. 1987, at 21.)
"The only conclusion that can be drawn from the medical evidence is the conclusion that is virtually uniform in the medical literature — asbestos-related injuries are the result of a continuous injurious process, beginning with first exposure and continuing through clinical manifestation."
(Source: Post-Trial Phase III Brief of Policy Holders on the Medical Evidence, 1986, at 8.)
"Moreover, that injury occurs continuously from the first day of occupational exposure through clinical diagnosis whether or not there has been an intervening period of no exposure"
(Source: Post-Trial Phase III Brief of Policy Holders on the Medical Evidence, 1986, at 20.)
"The first injury leading to the development of bronchogenic carcinoma or mesothelioma ... is the inflammatory reaction and onset of fibrosis which occur at the time of initial exposure."
(Source: Armstrong World Industries, Inc., 1987, at 41.)
"Once the gas exchange capacity of an individual alveolar/capillary unit is compromised, the loss is permanent."
(Source: Armstrong World Industries, Inc., 1987, at 10.)
"The accumulation of scar-like tissue decreases the functional volume of the lungs, stiffens the passage ways, and impedes the transfer of gases in and out of the blood. If the process continues, the functional capacity of the lungs becomes inadequate to support normal activities and may eventually be unable to support life."
(Source: Brief of The Travelers Insurance Co., 1981.) [View document]
"The injury to the body begins at the first inhalation of the asbestos fibers. Although the eventual change in the lungs begins to develop at this time, it is not until the disease is relatively advanced that a firm diagnosis of asbestosis can be made."
(Source: Internal Memo of The Travelers Ins. Co., Liability Claims Administration, Section 18, Injurious Exposure Claims, at sec. 18.1.)
"It is estimated that in order for the disease asbestosis to be clinically diagnosed, the gas exchange function of at least 100 million alveolar/capillary units [1/3 of the lung] must be affected."
(Source: Armstrong World Industries, Inc., 1987, at 12.)
Statements of Pittsburgh Corning Corporation in Pittsburgh Corning Corp. v. The Travelers Indemnity Co. v. PPG Industries, Inc., et al, United States District Court for the Eastern District of Pennsylvania, Civil Action No. 84-3985, filed October 24, 1984, at 8.
Internal Memo of The Travelers Ins. Co., Liability Claims Administration, Section 18, Injurious Exposure Claims, at sec. 18.1.
Armstrong World Industries, Inc., Fibreboard Corporation and GAF Corporation Statements, Policyholders' Proposed Medical Findings of Fact, In re Asbestos Ins. Coverage Cases, Superior Court of California, City and County of San Francisco, Dep't No. Nine, Judicial Council Coordination Proceeding No. 1072, January 26, 1987.
Post-Trial Phase III Brief of Policy Holders on the Medical Evidence, Superior Court of the State of Ca., City & County of San Francisco, Dept. No. 9, Judicial Coordination Proceeding No. 1072, Filed Dec. 9, 1986.
Brief of The Travelers Insurance Co. re Exposure v. Manifestation, Commercial Union Inc. Co. v. Pittsburgh Corning, et al., U.S.D.C., E.D.P.A., filed July 14, 1981.
Brodeur, Paul. (1985). Outrageous Misconduct: The Asbestos Industry On Trial, Pantheon Books, New York.
Department of Health and Human Services (HHS) (1978). "Asbestos: An information resource [Cited in: American Insurance Association, Estimates of potential liability from asbestos and DES related injury (draft preliminary report). Presented to the task force on tort liability for cumulative trauma and latent injury, 1980]."
Kilburn, K. H. (2000). "Prevalence and features of advanced asbestosis (ILO profusion scores above 2/2). International Labour Office." Arch Environ Health 55(2): 104-8.
Markowitz, S. B., A. Morabia, et al. (1997). "Clinical predictors of mortality from asbestosis in the North American Insulator Cohort, 1981 to 1991." Am J Respir Crit Care Med 156(1): 101-8.
Nicholson, W. J., G. Perkel, et al. (1982). "Occupational exposure to asbestos: population at risk and projected mortality--1980-2030." Am J Ind Med 3(3): 259-311.
Oksa, P., M. S. Huuskonen, et al. (1998). "Follow-up of asbestosis patients and predictors for radiographic progression." Int Arch Occup Environ Health 71(7): 465-71.
Oksa, P., M. Klockars, et al. (1998b). "Progression of asbestosis predicts lung cancer." Chest 113(6): 1517-21.
Peterson, M. A. (2003). "Testimony at the United States Senate Committee on the Judiciary Solving the Asbestos Litigation Crisis: S. 1125, the Fairness in Asbestos Injury Resolution Act of 2003 (June 4, 2003)."
Peterson, M. A. (2003b). "Forecasting the Costs of S.1125 As Amended on July 10, 2003." Prepared for Caplin and Drysdale, September 8, 2003.
Selikoff, I. J. (1976). "Asbestos disease in the United States 1918-1975." Rev Fr Mals Respiratories 4 (suppl 1): 7-24.
Selikoff, M.D., I.J, R. Lilis, M.D., and H. Seidman, M.B.A., Predictive Significance of Parenchymal and/or Pleural Fibrosis for Subsequent Death of Asbestos-Associated Diseases, (unpublished manuscript).
Walker, A. M., J. E. Loughlin, et al. (1983). "Projections of asbestos-related disease 1980-2009." J Occup Med 25(5): 409-25.
Welch, L. S. (2003). "Testimony at the United States Senate Committee on the Judiciary Solving the Asbestos Litigation Crisis: S. 1125, the Fairness in Asbestos Injury Resolution Act of 2003 (June 4, 2003)."
ILO Categories Explained
Testimony of Laura Welch, MD
Medical Director, Center to Protect Workers Rights On Asbestos Related Diseases
Medical Criteria, Populations at Risk and Disease Projections Before the Senate Judiciary Committee June 4, 2003
Excerpt, page 3:
The International Labor Organization developed a way of grading chest x-rays for dust diseases of the lung. The most recent version is the1980 Classification of the Radiographic Appearance of Pneumoconioses (dust diseases of the lung). This system is accepted around the world. It provides a standard notation, so that if one reader calls a film a "1/1" another reader will know what the first reader is referring to. The classification uses a 12-point scale to define the degree, or severity, of increased lung markings. Classification of pleural changes (involvement of the membrane lining the chest wall and the lung) uses a separate scale, with specific notations made for side of the chest, whether or not the plaques contain calcium deposits, and the specific type, length, and width of the thickening of the pleura.
This 12-point scale runs from 0/- to 3/+; a "0" film is normal and a "3" film is the most severe scarring. Each reading on the scale is characterized by a number between 0 and 3, and a second number, separated by "/". The first number, preceding the "/", is the final number assigned to that film by that reader. The second number, following the "/", is a qualifier. The numbers 0, 1, 2, and 3 are the main categories. An x-ray read as a category 1 film might be described as 1/0, 1/1, or 1/ 2. When the reader uses 1/1, he is rating the film as a 1, and only considered it as a 1 film. If he uses 1/0, he is saying is rating the film as a "1", but considered calling it a "0" film before deciding it was category 1. Finally, when the reader uses 1/2, he is saying he is rating the film as a "1", but did consider calling it a "2" film. In clinical practice, any category "1" film is abnormal; therefore a 1/0 film is consistent with asbestosis.
Asbestos isn’t the only problem that DuPont must face!!!
More news on the expanding facts about TOXIC TEFLON
Thursday, March 31, 2005
Could everyday consumer products be introducing a chemical into our homes? Marketplace unravels a mystery with an investigation into a Teflon chemical called PFOA. It's used in the production of common consumer products; it takes years to break down – and it's showing up in our blood.
Yes, PFOA is used to make the Teflon® FEP that is used to make CMP Plenum Cable. Read this story.CBC MARKETPLACE: YOUR HEALTH » CONTAMINANTS
There's something in the air, and it may be coming from your carpet
Broadcast: March 20, 2005
The clues lay in everyday consumer products, like this pair of Teflon-treated pants.
It’s a puzzle that scientists around the world are trying to piece together.
How is a chemical showing up everywhere? The clues reside in everyday consumer products: carpeting, dental floss, a pair of men’s pants, a child’s watch.
What do they have in common? Could everyday consumer products have a secret life – that could be harmful?
Hot on the trail of the mystery is Scott Mabury, an environmental chemist at the University of Toronto. Mabury is conducting his experiments on everyday consumer products that have been treated with Teflon. Mabury has published dozens of papers on pollutants. He isn't interested in the use of the material on non-stick pots and pans -- he's investigating the Teflon stain repellents used in consumer items.
Scott Mabury is conducting experiments on everyday consumer products that have been treated with Teflon stain repellents.
'They acted like crazy cattle'
The first clue in Scott Mabury’s investigation into stain repellents used in consumer products takes us hundreds of kilometres away from his lab, to Parkersburg, West Virginia.
In the late 1990s, cows on a farm there started dying inexplicably. First they developed pink eye. And then they started acting strangely. “They acted like crazy cattle,” recalls farmer Della Tennant. “You had to be careful when you got out in the field with them, because they would chase you.”
In the end, the Tennants lost almost 300 cattle. “They died horrible deaths,” says Della. “It was awful… it was the most terrifying thing I had ever seen.”
What could be the cause? The Tennants didn’t have to look further than a nearby creek. They noticed frothy foam that Della says would sometimes rise six feet above the top of the water. “The fish were dying. That’s when we started getting suspicious,” she says.
In the end, the Tennants lost nearly 300 cattle.
The Tennants were suspicious of a corporate giant located just over the hill from their farm: DuPont, known for the brand name Teflon.
The Tennants sued DuPont. The case was settled out of court.
The Tennant's lawsuit paved the way for another case, a class action over contaminated drinking water. DuPont settled again in that case.
“We felt that people needed to know what was in their water,” says Della. What was in the water was the chemical at the heart of our investigation: high levels of perfluorooctanoic acid, or PFOA. It's a chemical DuPont makes at its plant in Parkersburg, West Virginia.
Secret memos speak of birth defects and cancer
DuPont is one of the largest chemical companies in North America. It has a plant just over the hill from the Tennants' farm.
The lawsuits uncover another clue in the stain-repellent mystery: secret internal DuPont memos that expose how dangerous PFOA can be. The documents reveal that:
- DuPont knew for decades that rats exposed to PFOA had developed liver damage.
- Two workers with high levels of PFOA in their blood had babies with eye and face defects [see the document].
DuPont dumped the same chemical, PFOA, into a landfill. It leached into a creek that the Tennants’ cattle drank from. “It makes me really sad that a company as big and as well-known as Dupont could do such a thing,” says Della.
The mystery deepens when it's discovered that the Teflon chemical PFOA isn’t just polluting the fields around DuPont's West Virginia plant. It’s showing up thousands of kilometres north, on Canadian soil.
NEXT: Chemical’s reach extends to the Canadian Arctic