If at First You Find the Truth, Try, Try Again
Under the guise of scientific inquiry and worker safety, a taxpayer funded effort is helping corporate America avoid legal responsibility for poisoning hundreds of thousands of Americans with asbestos. The National Institute for Occupational Safety and Health has proposed a roadmap that purportedly seeks to minimize the potential for asbestos disease.[1] In fact, the roadmap and its vast melding of tax dollars, federal bureaucracy, and industry cronies seek to protect asbestos defendants from valid claims by mesothelioma victims by showing that chrysotile asbestos is harmless, in contravention of almost one hundred years of clinical research.
The only two significant remaining issues for asbestos manufacturers after more than a century of wantonly poisoning millions—and earning billions—are defending mesothelioma lawsuits and defeating a ban on asbestos. The reasons are simple: asbestos lawsuits have bankrupted more than 85 companies since 1976, with more sure to follow,[2] and asbestos is still a profitable poison to sell in this country.[3]
These are not your grandfather’s bankruptcies, however, where bankruptcy meant that the company got liquidated, laid off all its employees, and wrecked the local economy.[4] The asbestos bankruptcy sham isn’t really a bankruptcy at all. It’s a legal sleight-of-hand that spins off the corporation’s legal liability by creating a trust fund to “compensate” victims. The sick and dying victims are then forced to hash it out with corporate lawyers, trust bureaucrats, and insurance companies, while being deprived of getting justice via direct lawsuits against the poisoner. The original mammoth bankrupt, Johns-Manville, has emerged from faux bankruptcy and today enjoys over $2.5 billion in annual sales.[5] An analysis of asbestos bankruptcies shows that the spin-off process has made them stronger, leaner, and profitable.[6] For the mesothelioma victims poisoned by these companies’ deliberate use of asbestos, the outcome has been less rosy. Victims of Johns-Manville who thought that they would be compensated soon found that the trust fund was tottering on the brink of bankruptcy after a few short years—in the old-fashioned sense, of course—so that they received only a pittance of the pittance they’d originally been promised.[7]
Not-so-covert Operation
The NIOSH roadmap is a sharp arrow pointed squarely at the heart of mesothelioma victims. Asbestos defendants know that there is no asbestos litigation crisis. There is no logjam in the courts, courts are not buckling under the weight of the asbestos caseload, and the peak of cases has passed.[8] Since faux-bankruptcies allow companies to quickly spin off their asbestos liabilities, and since the only detailed review of asbestos litigation as it relates to the supposed litigation crisis decisively concludes that there is none,[9] the only two issues left on the table are mesothelioma lawsuits and the ability to keep peddling the poison for a profit.
Mesothelioma litigation is one of the only avenues to the courthouse left for asbestos victims, and to get there the claimant usually has to die, since mesothelioma has the poorest of prognoses. But once in court, the victim has a good chance of getting some form of justice in the few states that haven’t shut the courthouse door to asbestos victims. Con Edison and Long Island Lighting Co. in New York got tagged with a $41 million verdict[10] a few years back, and defendants live in terror of the eight-digit judgments that outraged juries hand down in select jurisdictions.
When a patient with mesothelioma worked in the right job and got exposed to asbestos from the right products, he has a great case because the only cause of mesothelioma is asbestos. Unfortunately, the price for his great case is typically a slow and painful death. Asbestos manufacturers that have not yet sought faux-bankruptcy protection have therefore made it their single biggest priority to prove that even though asbestos indisputably causes mesothelioma, “their” type of asbestos does not.
Enter NIOSH and the roadmap.
Truth or Consequence?
Science has been political since Galileo recanted to the Inquisitors-General. But from the time the great astronomer retracted his heliocentric ideas in 1633, the general trend has been to insist on greater objectivity and less politics in science. Federal agencies like the EPA and NIOSH have historically been regarded as purveyors of reasonably de-politicized scientific inquiry. The Bush administration, however, has fast-tracked governmental science right back to the 17th Century.
Industry has seized on a number of administration initiatives as an indication that the time is ripe to churn out some old-fashioned junk science on the issue of how much of what kind of asbestos causes what kind of cancer how often in whom. The administration has favored junk science initiatives that cover a wide range of health and science related issues, and that have encouraged industry operatives with a wink and a nod about the new direction of science in government.
With respect to global warming, the administration’s strategy has been to question it at every turn.[11] The core policy of the administration has been to increase fossil fuel consumption while playing semantic games that exacerbate the problem,[12] if there is a problem, which they deny. Even when the EPA endorsed the idea that human activities such as oil refining, power plants, and automobile emissions are important causes of global warming, Bush dismissed them as “bureaucrats.”[13] Stem cell research, another province of hard science, has met with great resistance from the President. In 2001 he limited federal funding for embryonic stem cell research to cell lines already in existence, but the twenty lines still in use have become genetically degraded and are now ill-suited for research.[14] Bush’s non-scientific decision flew in the face of the National Institutes of Health, who have concluded that research on human embryonic stem cells offers great promise for curing Parkinson’s disease, heart disease, Alzheimer’s disease, spinal cord injury, and diabetes.[15] An equally blind and cynical eye was turned to mercury emissions,[16] tobacco,[17] air pollution,[18] and science in general, as the President declared his ideas about intelligent design on a scientific par with those of Charles Darwin by insisting they be taught in the classroom.[19] Asbestos industry operatives have been keenly watching the presidency for cues as they ramp up their assault on well-established notions of the asbestos toxicity in the waning days of the Bush Administration.
Silence of the Dead
Junk science and suppression of data are old friends to the asbestos industry. Chronicling the lies and cover-ups by asbestos defendants would occupy thousands of pages, and has been reviewed in depth by Castleman,[20] among others. Legal discovery in litigation has been responsible for uncovering much of the hard proof that of wrongdoing by the asbestos defendants. A brief recap, however, is appropriate because what is happening in the 2007 NIOSH roadmap bears uncanny resemblance to what happened decades ago.
In the 1920’s the medical community recognized that the fibrotic lung condition later known as asbestosis was caused by, of all things, exposure to asbestos.[21] By 1933, hired gun scientist, physician, and public health expert Anthony Lanza told asbestos company doctors that he didn’t think the hazards of asbestos warranted warning labels or posters in view of the “extraordinary” legal repercussions of telling the truth.[22] The asbestos industry, with its lawyers, insurers, and hired scientists, laid the foundation in the early 30’s for future concerted action to conceal research findings about asbestos and cancer.[23] In addition to doctoring scientific studies, publishing redacted science in peer-reviewed journals, and having asbestos industry business managers review and edit scientific research,[24] the history of America’s worst public health disaster has been largely caused by industry fraud.
Past behavior is always a useful referent for future performance. As NIOSH embarks on its industry-approved roadmap, it is helpful to remember that the strategy for asbestos companies has always centered on delay. In 1950, asbestos corporate officials had already committed to a firm policy of “epidemiology” and “causation,” the very two issues still being “debated” more than half a century later. In recommending an epidemiologic approach, the medical officer for Johns-Manville also opined that, “We would be wise to wait until we have proof of no causal relationship between asbestosis and pulmonary cancer…”[25]
It’s 2007, and the draft language from NIOSH’s roadmap indicates that they’re still waiting: “Yet, as we enter the 21st Century, many questions and areas of scientific uncertainty remain…Most importantly, the Roadmap outlines a research program that will provide answers to current scientific questions, reduce scientific uncertainties, and provide a sound scientific foundation for future policy development.”[26]
Johns-Manville couldn’t have said it better.
Endless Doubt
Asbestos defendants have a simple strategy for defeating valid mesothelioma claims in court: raise the level of uncertainty about science in order to keep it from the jury. Judges have been reluctant to keep out evidence where reasonable scientists disagree. So the asbestos defendants have chosen to raise the level of uncertainty about science in order to delay the use of knowledge about chrysotile toxicity for purposes of OSHA decision-making, and to limit public awareness of an issue affecting public or environmental health.
The backbone of the strategy to bring NIOSH to its knees vis-à-vis asbestos science begins with the insidious Information Quality Act, the brainchild of anti-regulation, pro-business lobbyist, trade council hack, voyeur, and self-confessed “dirty old man” Jim Tozzi.[27] The American Chamber of Commerce claimed that the law would “have a revolutionary impact on the regulatory process.”[28] Public interest groups claim that it has become a tool that special interest groups can use to avoid regulation forever.[29] Both have been proven correct.
With regard to asbestos science the jury is already in—or out and not coming back, if you’re a mesothelioma victim—on whether the act exists to promote quality data or exclude good science from agency regulations. On August 19, 2003, the asbestos defense firm Morgan, Lewis and Bockius[30] filed a petition with the EPA challenging a 1986 publication, “Guidance for Preventing Asbestos Disease among Auto Mechanics.”[31] Morgan Lewis claimed that the publication, known as EPA’s Gold Book, flunked the requirements of the Information Quality Act. Pursuant to the act, they claimed the data was inadequate, inappropriate, outdated, and in conflict with subsequent studies. Then they launched an all-out attack on the Gold Book claiming that verification of the publications origins, preparations, funding, review, and approval of the booklet are unknown.
Why all this fuss about an EPA publication that says in plain language:
1. Asbestos disease should be prevented among auto mechanics
2. Asbestos causes disease
4. Asbestos is easy to breathe and ingest
5. Proper work practices will reduce exposure
The fuss, of course, is that the automotive industry is terrified of mesothelioma lawsuits from auto mechanics. Brakes and clutches contain chrysotile asbestos. If chrysotile is dangerous enough for the government to warn, then the companies may ultimately be liable for their failure to warn—especially since they knew of the danger. The only solution, as they see it, is to prove that it’s not dangerous, or that the science is so complex and uncertain that they couldn’t have known.
Morgan Lewis’s challenge framed the innocuous publication as one intended to change the work-behavior practices of an entire industry and, because it relied on information from scientific sources, as one that must meet the rigorous standard for “influential information.” The key admission as to what was really driving their concern over the publication, however, was Morgan Lewis’s note that during litigation the Gold Book is routinely proffered as evidence of EPA’s current position and thinking on whether asbestos-containing friction products are dangerous to users.[32] Morgan Lewis cared zero about the quality of the data, and everything about its admissibility in court.
EPA caved in, approving most of the petition and promising to put out a new brochure, which it did.[33] OSHA then took over, as it came to do the bidding of the asbestos defendants and their lawyers. Unlike the Gold Book, which begins with the phrase “preventing asbestos disease among auto mechanics,” OSHA’s new document begins with a legal disclaimer: “[this bulletin] is not a standard or regulation, and it creates no new legal obligations.” The Gold Book talks about latency, asbestosis, mesothelioma, and lung cancer—evils caused by asbestos beyond any shred of scientific doubt, and the book instructs “there is no known level of exposure to asbestos below which health effects do not occur.” In contrast, OSHA’s 2006 bulletin includes exactly 27 words about health effects of asbestos. The document assures readers that asbestos use is declining, that newer cars may not use such products, and that nothing in the bulletin is to be taken as a standard, requirement, or regulation. It’s more like free advice, worth pretty much what it costs.
And what about the scientific quality of the government’s new booklet under the Information Quality Act? The original Gold Book was documented with 37 footnotes. The new OSHA brochure? One.
Tilting the Panel
The NIOSH draft roadmap, developed with the help of NIOSH scientists and engineers with combined experience in toxicology, epidemiology, industrial hygiene, analytical chemistry, and other disciplines, is forty-seven pages long. It includes a glossary, extensive footnotes, graphs, and even a list of acronyms. But nowhere in the document does it provide the long list of names of the scientists, engineers, and others who supposedly developed the report.
Nor is this a harmless oversight. The roadmap’s peer review panel is carefully composed of three unabashed “chrysotile doesn’t cause meso” members, one asbestos victim advocate, and five members who have expertise in various areas. None is an advocate for the proven scientific proposition that chrysotile causes mesothelioma. Ann G. Wylie, mineralogist at the University of Maryland, most recently worked as the principal investigator for a $508,000 grant funded by GM, Chrysler-Daimler, and Ford,[34] in case anyone’s wondering where she stands on chrysotile asbestos as it relates to automotive brakes. Wylie also is an unabashed proponent of the idea that exposure limits need to be revised via reclassification of asbestos fibers[35]—and she’s not suggesting downward, either. This reclassification—or research, as it’s called in the roadmap—is precisely what NIOSH has been tasked by industry to do: allow lots of exposure to chrysotile.
Brooke Mossman from the University of Vermont is another rabid asbestos apologist on the peer review panel. In addition to a Scientific American article where she reminds readers that chrysotile is “safer” than other forms of asbestos, and that other countries find asbestos of great utility,[36] Mossman defends one of her papers by quoting an epidemiologist who suggests that chrysotile may not cause mesothelioma at all.[37] The real aim of the roadmap is to find a path out of the last century of medical research, and find a way back to the days when Dr. Lanza could authoritatively tell fellow physicians that there really was no need for warnings about asbestos. Unlike Lanza, who was at least honest enough to admit that the reason for suppressing scientific facts was fear of litigation, the new crop of NIOSH hacks are hell-bent on simply denying the science.
In case the panel’s hue in terms of chrysotile toxicity weren’t sufficiently in favor of asbestos defendants, Morton Lippman also came along for the ride. Lippman believes that any fiber less than 5µ (happens to include most chrysotile fibers) is harmless. When the Carpenter Report clearly explained that even though short fibers might be less carcinogenic than long fibers, the fact that short fibers greatly outnumbered long fibers in Lower Manhattan after 9/11 and thus might cause more disease than long ones, Lippman accused Carpenter of “fear-mongering” in raising the short fiber issue.[38]
Since the NIOSH roadmap covers an extraordinary scope—“a research program that will provide answers to the current scientific questions, reduce scientific uncertainties, and provide a sound scientific foundation for future policy development”—it is remarkable that three pure pro-chrysotile reviewers would be on the peer review panel of only nine people, unless of course the real purpose of the roadmap was not to provide answers to current scientific questions but to chart a course for GM, Ford, and Chrysler-Daimler so that they may continue using chrysotile in their brakes and clutches, while helping chrysotile defendants avoid liability in court.
So How Dangerous IS Chrysotile?
Given the 3,000-4,000 Americans who die every year from mesothelioma, and have been doing so for decades, that the question is being asked at all is an offense against humanity. While asbestos defendants in this country dredge up the old arguments about the harmlessness of chrysotile, the rest of the world is working overtime to ban it. As of 2007, chrysotile has been banned by Iceland, Norway, Denmark, Sweden, Switzerland, the Netherlands, Finland, Italy, Germany, Kuwait, France, Poland, Monaco, Belgium, Saudi Arabia, Lithuania, the United Kingdom, Ireland, Brazil, Latvia, Chile, Argentina, Spain, Luxembourg, Uruguay, Australia, Honduras, South Africa, Japan, Cyprus, the Czech Republic, Estonia, Greece, Hungary, Lithuania, Malta, Portugal and Slovakia, Egypt, Jordan, Croatia, New Caledonia, Gabon, and the Seychelles.[39]
What do they know that we don’t? Nothing.
The World Health Organization classifies chrysotile as a carcinogen, period.[40] The International Agency for Research on Cancer is emphatic that it is not possible to assess whether there is an exposure level below which an increased risk of cancer will not occur.[41] The IARC classifies chrysotile as a carcinogen, and clearly states that although other types of asbestos create a higher risk for mesothelioma, some cases of mesothelioma do occur as a result of exposure to chrysotile.[42]
While asbestos defendants gleefully seize on the fact that chrysotile isn’t the most potent cause of mesothelioma, they forget that OSHA and EPA’s mandates aren’t only to ban the most potent causes of mesothelioma, but to make the workplace safer. Chrysotile is a carcinogen, case closed. From an occupational safety regulatory standpoint, what difference does it make to NIOSH whether mechanics are more likely to get mesothelioma or lung cancer? The substance is clearly dangerous, so get rid of it.
The answer, of course, is that the NIOSH roadmap is not set up to get asbestos carcinogens out of the workplace—everyone, even its most rabid apologists, agrees that chrysotile is a carcinogen. The NIOSH roadmap is, rather, set up to prove that chrysotile doesn’t cause mesothelioma. A greater perversion of a workplace safety research institute could hardly be imagined.
However at odds with public health or occupational safety, the real NIOSH inquiry is “Does this otherwise lethal carcinogen also cause mesothelioma?” The answer is also “yes.” A 25-year longitudinal study in China conducted by Chinese, Japanese, and American researchers showed that chrysotile alone causes mesothelioma. [43] This debunks the industry claim that only non-chrysotile forms of asbestos are to blame, and it confirms what doctors have been seeing for a century: even if chrysotile is less deadly, when the concentrations are high enough it causes lots and lots of mesothelioma.
NIOSH’s mandate is to protect workers. Abating asbestos and strictly enforcing dust suppression laws saves lives. Supporting the Ban Asbestos Act and putting teeth into workplace safety regulations fit neatly with OSHA’s mission. Empanelling junk scientists and churning out draft roadmaps fit the mission of asbestos defendants seeking a silver bullet to slay products liability litigation and to let them continue hawking their deadly wares.
Can We Please Go Home?
There is no compelling scientific, regulatory, medical, or policy reason to invest public money in an effort to establish that chrysotile doesn’t cause mesothelioma. Such research seeks to exculpate the fiber types that were used in 95% of all commercial and industrial applications, usage levels that fit neatly with the thousands of mesothelioma deaths every year in this country, and fit even more neatly with the Chinese study that shows how more exposure will lead to more mesothelioma.
No research will ever exculpate asbestos defendants’ products as pure chrysotile, because reasonable scientists differ over whether pure chrysotile even exists.[44] In addition, most of the asbestos used through the 1970’s, which is the source of the current mesothelioma scourge, was contaminated with amphibole/tremolite fibers. Sixty years ago asbestos manufacturers tried to escape blame for the public health crisis by pointing the finger at South African blue asbestos. Now they’re doing it again, except this time it’s with taxpayer dollars and the weight of a federal agency.
NIOSH should stop wasting resources on its sham roadmap. NIOSH should start investing money in finding a cure for mesothelioma. NIOSH should use its resources to come up with scientific findings that will help OSHA make the workplace safer by banning asbestos products. It really is that simple.
[1] Middendorf, Paul, Ralph Zumwalde, and Robert Castellan, “Asbestos and other mineral fibers: a roadmap for scientific research,” by on behalf of the NIOSH Mineral Fibers Work Group, Feb. 2007
[2] J.T. Thorpe: A Case Study, Brian L. Davidoff and Jeanne C. Wanlass, www.Lawjournalnewsletters.com, April 2007
[3] Virta, Robert L., Asbestos: Geology, Mineralogy, Mining, and Uses, U.S. Geological Survey, 2002, http://pubs.usgs.gov/of/2002/of02-149/of02-149.pdf. “In the U.S., the major use in roofing compounds (62%), followed by gaskets (22%) and friction products (11%).
[4] Mayerson, Marc, InsuranceScrawl.com, Mar. 2006. The first step in an asbestos-driven bankruptcy is to take the asbestos claims stream and estimate its value. The debtor then needs to satisfy that creditor claim in the bankruptcy, which it does by setting up a trust and funding it with cash (from itself and sometimes its corporate parent), stock, and preexisting insurance rights. The debtor receives a channeling injunction that bars the assertion of any asbestos-related claim against itself (and sometimes against non-debtors, see Susan Power Johnston and Katherine Porter, Extension of Section 524(g) of the Bankruptcy Code to Nondebtor Parents, Affiliates, and Transaction Parties, 59 Business Lawyer 511-12 (2004)), and the injunction furthermore funnels all claims to the trust. In other words, the debtor is able to emerge from bankruptcy shorn of its asbestos liabilities without fear of any future claims. The trust in turn is charged with resolving the asbestos claims and sets up an administrative compensation process, usually with relaxed standards of proof, to “adjudicate” the tort claims. The claimant may have the right further to bring an action in court, though with no ability to seek punitive damages for example. This is the model that was used in the Manville bankruptcy and was confirmed, expanded, and modified by Congress in 1994 when the bankruptcy code was amended with the addition of section 524(g), 11 U.S.C. § 524(g), a provision specially designed to deal with asbestos-driven bankruptcies. While certain procedural and substantive changes were implemented in 524(g), from the debtor’s perspective one key was that 524(g) made clear that future claims, claims by persons exposed to asbestos but who at the time of the bankruptcy filing had no legal claim, would have their claims channeled to the trust as well. Dealing with “futures” has been the Achilles heel of several non-bankruptcy deals in the class-action context, Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999); Amchem v. Windsor, 521 U.S. 591 (1997), so the express conferral of power on bankruptcy courts to limit the right to sue of future claimants was quite significant. [Insurance Scrawl was profiled in The Wall Street Journal’s “Guide to the Blogs Insiders Read to Stay Current.” (11/16/05), and described as “influential” and a “must read,” for keeping “editorializing to a minimum,” while providing analysis with “weight” that “dissect[s]” court opinions and addresses the “nuances.”]
[5] SEIDA annual report, 2005, http://www.seida.info/downloads/2005AnnualReport.pdf
[6] Benston, George J., Professor, “Financial Analysis of Companies that Filed for Chapter 11 Bankruptcy in 2000 and 2001 as a Result of Asbestos Obligations,” Oct. 2003, http://www.ewg.org/reports/asbestos/facts/fact2.php
[7] Zirin, James D., of Sidley Austin Brown & Wood, Dow Jones Company, 2001. To date, after some more judicial intervention, the trust has settled with an additional 55,000 claimants and paid a total of $2 billion to victims of asbestos exposure, mostly on a basis of 10 cents on the dollar.
[8] “Asbestos Cases in the Courts: No Logjam,” Public Citizen, Feb. 2006, http://www.citizen.org/documents/NoLogJam.pdf
[9] “Asbestos Cases in the Courts: No Logjam,” Public Citizen, Feb. 2006, http://www.citizen.org/documents/NoLogJam.pdf
[10] Croteau v. Consolidated Edison, No. 118793/01 (New York Co., N.Y., Sup. Ct.)
[11] The Guardian, April 4, 2004
[12] Mieszkowski, K., “Bush: Global warming is just hot air,” Salon, Sep. 10, 2004. “The core of the Bush policy was a voluntary goal of reducing emissions ‘intensity’ by 18 percent by 2012,” says Aimee Christensen, executive director of Environment 2004, a political action group. So what the policy really calls for—but does not require—is a mere 4 percent reduction in intensity. What’s lost in the discussion about “emissions intensity” says Christensen, is that actual greenhouse gas emissions will increase 12 percent. Compare that to the targets set by the Kyoto Protocol, which would have mandated that by 2012 the U.S. return to emission levels 7 percent below those of 1990, or the McCain/Lieberman Climate Stewardship Act, which asked that the U.S. return to year 2000 levels of emissions. Both those plans would result in actual reductions, not just intensity reductions. The Bush administration walked away from the first proposal on the international stage and opposed the second here at home.
[13] CBS/AP News, June 4, 2004, http://www.cbsnews.com/stories/2002/06/03/tech/main510920.shtml
[14] Los Angeles Times, March 20, 2007
[15] NIH, Stem Cells: Scientific Progress and Future Research Directions (June 2001)
[16] Committee policy hearing on administration’s proposed mercury emissions rules, July 9, 2004. “Vermont’s U.S. Senators Patrick Leahy and Jim Jeffords Friday led a hearing to examine the Bush Administration’s proposal on mercury emissions from power plants. The nation’s 1,100 coal-burning power plants emit about 48 tons of mercury each year, the largest unregulated U.S. source. Witnesses, including former Environmental Protection Agency (EPA) officials, testified that the Administration proposal allows for more mercury pollution than current law and is much less protective of public health. Jeffords, the ranking member of the Senate Environment and Public Works Committee said, “Sadly, the Bush Administration’s proposal on mercury pollution from power plants appears to do little to protect public health, especially in the short term. The proposed Administration rule calls for a permanent delay in serious reductions and would achieve far less in cleanup than is possible with today’s technologies and is required by the Clean Air Act. Also, it lets more than 200 power plants buy their way out of controlling these toxic emissions for 20 years or more.” http://leahy.senate.gov/press/200407/070904.html
[17] Washington Post, Mar. 22, 2007. The leader of the Justice Department team that prosecuted a landmark lawsuit against tobacco companies said yesterday that Bush administration political appointees repeatedly ordered her to take steps that weakened the government’s racketeering case. Sharon Y. Eubanks said Bush loyalists in Attorney General Alberto R. Gonzales’s office began micromanaging the team’s strategy in the final weeks of the 2005 trial, to the detriment of the government’s claim that the industry had conspired to lie to U.S. smokers.
[18] President George W. Bush, April 20, 2007, http://www.whitehouse.gov/infocus/environment/. “By encouraging cooperative conservation, innovation, and new technologies, my Administration has compiled a strong environmental record. This Earth Day, harmful air pollutant levels are down more than ten percent since 2001. Millions more Americans are drinking cleaner, safer water. We have removed hazardous fuels from more than 19 million acres of federal land. We have created, restored, or protected more than 2.5 million acres of wetlands, and we have conserved almost 200 million of acres of habitat through Farm Bill conservation programs. And we are taking positive steps to confront the important challenge of climate change. Our work is not done. We also have a responsibility to pass on to future generations our commitment to the environment.” Contrast this with an analysis of the Clear Skies plan that shows it will weaken and delay health protections already required under the law, set weaker targets for emissions of sulfur dioxide, mercury, and nitrogen oxides from U.S. power plants, fail to include a single measure to reduce or even limit the growth of carbon dioxide, and hamstring efforts to cut pollution from old coal-fired plants. Natural Resources Defense Council, Sep. 4, 2003, http://www.nrdc.org/air/pollution/qbushplan.asp.
[19] Washington Post, Aug. 3, 2005. President Bush invigorated proponents of teaching alternatives to evolution in public schools with remarks saying that schoolchildren should be taught about “intelligent design,” a view of creation that challenges established scientific thinking and promotes the idea that an unseen force is behind the development of humanity.
[20] Castleman, B., “Asbestos: Medical and legal aspects,” 1986
[21] “The Silence: The Asbestos Industry and Early Occupational Cancer Research—A Case Study,” Lilienfeld, David, M.D., American Journal of Public Health, 1991, Vol. 81, No. 6
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Asbestos and Other Mineral Fibers: A Roadmap for Scientific Research, NIOSH, Feb. 2007
[27] Washington Monthly, May 2004. Tozzi’s Information Quality Act, codified at 44 U.S.C. 3504(d)(1) and 3516, has led to suits challenging a government report on climate change and a National Institutes of Health study on diet, both of which represent state-of-the-art scientific work in their fields. The latter suit was recently filed by the Chamber of Commerce and the Salt Institute, an industry group, as a strategic test case to establish judicial review under the Data Quality Act. Slowly, Tozzi and allies are laying the groundwork for a broader assault on the regulatory state. Data quality, says Kovacs, is going to have “a revolutionary impact on the regulatory process.”
[28] The Information Quality Act: OMB’s Guidance and Initial Implementation, Congressional Research Service, Sep. 17, 2004.
[29] Id.
[30] Information Quality Act petition, Aug. 19, 2003
[31] EPA publication, June 1986
[32] Information Quality Act petition, id.
[33] Asbestos—Automotive Brake and Clutch Repair Work, OSHA, Jul. 26, 2006, http://www.osha.gov/dts/shib/shib072606.html#1
[34] Ann G. Wylie curriculum vitae
[35] Wylie, A., The Importance of Width in Asbestos Fiber Carcinogenicity and its Implications for Public Policy, American Industrial Hygiene Association journal, Jun. 1993. “Evidence from human epidemiology, experimental animal implantation and inoculation studies, and lung burden studies shows that fibers with widths greater than 1 µm are not implicated in the occurrence of lung cancer or mesothelioma. Furthermore, it is generally believed that certain fibers thinner than a few tenths of a micrometer must be abundant in a fiber population in order for them to be a causative agent for mesothelioma. These conclusions are fully consistent with the mineralogical characteristics of asbestos fibers, which, as fibrils, have widths of less than 1 µm and, as bundles, easily dissagregate into fibrils. Furthermore, the biological behavior of various habits of tremolite shows a clear dose-response relationship and provides evidence for a threshold between fiber width and tumor experience in animals. Public policy in regulating mineral fibers should incorporate this knowledge by altering the existing federal asbestos fiber definitions to reflect it.”
[36] “Asbestos Revisited,” Scientific American, July 1997
[37] Environmental Health Perspectives Volume 102, Number 5, May 1994
[38] NYCOSH Update on Safety and Health, Vol. VIII, No. 22, March 16, 2005
[39] International Ban Asbestos Secretariat, 2006
[40] International Agency for Research on Cancer (IARC), 1998, Summaries & Evaluations: ASBESTOS
(Actinolite, amosite, anthophyllite, chrysotile, crocidolite, tremolite), (Group 1)
[41] IARC Monographs on the Evaluation of Carcinogenic Risks to Humans, Vol. 14, Asbestos, http://monographs.iarc.fr/ENG/Monographs/vol14/volume14.pdf
[42] IARC Monographs on the Evaluation of Carcinogenic Risks to Humans, Vol. 2, Some Inorganic and Organometallic Compounds, http://monographs.iarc.fr/ENG/Monographs/vol2/volume2.pdf
[43] Cancer Mortality among Workers Exposed to Amphibole-free Chrysotile Asbestos, American Journal of Epidemiology Vol. 154, No. 6 : 538-543, 2001. The issue of whether exposure to chrysotile asbestos alone, without contamination from amphibole asbestos, causes lung cancer and mesothelioma was investigated in a 25-year longitudinal study (1972–1996) in Chongqin, China. The study cohort comprised 515 male asbestos plant workers exposed to chrysotile only; the control cohort included 650 non-dust-exposed workers. The results of analysis in which the proportional hazards model was used indicated that mortality due to all causes, all cancers, and lung cancer was related to asbestos exposure; the relative risks, adjusted for age and smoking, were 2.9, 4.3, and 6.6, respectively. Fiber concentrations in the raw material section and the textile section of the plant were 7.6 and 4.5 fibers/ml, respectively. Because of differences between the study and control plants, the authors also compared various sections of the asbestos plant that had different levels of dust exposure. The adjusted relative risk of lung cancer was 8.1 for workers exposed to high versus low levels of asbestos. Two cases of malignant mesothelioma, one pleural and the other peritoneal, were found in the asbestos cohort. These results suggest that heavy exposure to pure chrysotile asbestos alone, with negligible amphibole contamination, can cause lung cancer and malignant mesothelioma in exposed workers.
[44] Analysis of Amphibole Asbestos in Chrysotile and Other Minerals, Addison, J., and L.S.T. Davies, Annals of Occupational Hygiene, Vol. 34, No. 2, pp. 159-175, 1990. Chrysotile asbestos and many other mineral raw materials contain amphibole minerals which may be asbestiform. There is currently no analytical method which will detect the presence of amphibole at sufficiently low limits to preclude the possibility of inadvertent exposure of persons handling these materials to hazardous airborne fiber concentrations. A method of chemical digestion of chrysotiles has been tested with regard to the determination of their tremolite contaminant content and this has been applied to a range of chrysotile and other minerals. The method improves the sensitivity of the amphibole analysis at least 10-fold giving detection limits of 0.01–0.05% in chrysotile by X-ray diffractometry (XRD). The difficulties arising from compositional and morphological variations are discussed in the context of the potential hazards from airborne fibers and the relative values of analyses by XRD, infra red spectrophotometry (IR) and electron microscopy. It is concluded that XRD and IR are useful as screening methods for the detection of amphibole in chrysotile but other materials should be analyzed by optical or electron microscopy.
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