From 1970 to 1990, the EPA was an advocate for public health and took a strong stance on asbestos control. When the Libby, Montana, story broke about asbestos contamination in the vermiculite mine, however, the EPA was criticized for with- holding information from residents about the level of contamination. Nearly 5 years after EPA studies determined the harmful effects of vermiculite mining in Libby, Montana, investigative stories published in the Seattle Post-Intelligencer (November, 1999), reported that exposure to tremolite asbestos from the vermiculite mine caused over 192 cancer deaths and 275 incidents of lung disease in this city. This reflected a much higher rate of cancer than expected in a community of this size.
Two key stories in the Seattle Post-Intelligencer, “A Town Left to Die” (Schneider 1999a) and “Miners’ Search for Gold Led to Vermiculite” (Schneider 1999b) gen- erated international attention. Additional stories, including community reactions to the health findings, continued to be published for several weeks. In response to the news stories, the EPA retested the site and found that outdoor air samples indeed showed high levels of tremolite and tremolite-like asbestos fibers. Additionally, nearly half of all homes in Libby contained asbestos levels many times greater than the EPA cancer risk level threshold. The stories also brought attention to the former owner of the mine, W.R. Grace & Company, which operated the mine for three decades until 1990, when it was sold to a development company. The Libby con- troversy and W.R. Grace’s refusal to acknowledge its responsibility in the crisis, was the subject of a two-part investigative documentary on ABC’s Nightline (ABC News Productions 2005). The reporter who broke the news was interviewed, as were Libby physicians, asbestos abatement experts, and victims from Libby, Montana and other states where Grace processing plants existed.
The earlier news prompted attention by health professionals and other agencies.
A comprehensive and rigorous environmental health study by the Agency for Toxic Studies and Disease Registry found that 30% of Libby residents had lung abnor- malities, and only half of them had been employed by Grace & Company. This was a significantly higher rate than would be predicted in normal populations. All those tested had worked at W.R. Grace & Co. or were residents of Libby prior to the mine’s closing in 1990 (Schneider 2001a; Smith 2001). W.R. Grace officials denied knowing that the vermiculite was laced with asbestos.
After the discovery of contamination of Libby residents’ homes, the EPA began removal of asbestos from many Libby, Montana, homes (now a Superfund site), and in some cases completely demolished homes that were highly contaminated. These were rebuilt after the site cleanup was completed.
In 2000, the EPA admitted knowing for nearly 5 years about the dangerous asbestos levels caused by the vermiculite mine in Libby. The EPA’s damage control included a question-and-answer section on its website regarding asbestos safety in general and the Libby investigation (Environmental Protection Agency, Office of
Pollution Prevention and Toxics, 2007). Also in 2000, several studies of products using asbestos-contaminated vermiculite and fibrous talc/asbestos (such as cray- ons) were conducted, and the EPA concluded that there was only a minimal health threat for humans, yet many manufacturers of products previously using fibrous talc and other vermiculite had voluntarily stopped using the materials in their prod- ucts. Additionally, the EPA issued guidelines for consumers, such as gardeners, to reduce the already “low” risk associated with vermiculite: use outdoors or in well- ventilated areas, change clothes that are contaminated with dust from vermiculites before going indoors, and use premixed soil. The strategy shifted from advocating for stronger asbestos regulation to encouraging people to take personal responsibil- ity for reducing risks associated with asbestos exposure.4
By the time the Libby story broke, asbestos victim litigation was already well underway across the nation. The first successful American asbestos lawsuit was in 1969; an employee of Johns-Manville was awarded over $79,000, but he died before the trial ended. Until 1977, industry officials denied having any prior knowledge that asbestos exposure was harmful to health. In a trial that year involving Raybestos- Manhattan, a plaintiff’s attorney uncovered indisputable evidence that contradicted these claims. The evidence proved industry officials knew for years about the dan- gers of asbestos exposure and yet did nothing to protect workers and consumers.
Since then, the floodgates have opened, with over 900,000 asbestos-related lawsuits filed since then. Most of the earlier claims against W.R. Grace were settled out of court with a gag order attached. One mine worker refused to settle out of court (Bowker 2003). A former bagger who swept up and bagged anything at the mine that was “in the hopper,” Les Skramstad was angry with the company for failing to warn workers of the health dangers. In 1996, suffering from asbestosis, he decided to sue the company and was eventually awarded over $600,000. W.R. Grace appealed and Skramstad waited over a year for a decision and compensation. Because Montana law does not place time limits on a judge’s ruling, he was forced to settle out of court for much less than he was awarded, because he needed the money for his immediate health care needs. The judge who delayed the case, Michael Prezeau, previously worked as a staff lawyer for a firm in Missoula, Montana that represented Grace in previous worker lawsuits (Bowker 2003, p. 134).
As lawsuits against W.R. Grace grew, the company and over 60 affiliated com- panies filed for bankruptcy in 2001. In 2004, it attempted to reorganize the bank- ruptcy filing to limit payments to claimants. Asbestos now represents the longest-running mass tort litigation in US history. Asbestos lawsuits have been filed on behalf of nearly 900,000 citizens, who claim they were unknowingly exposed to health-threatening toxic levels of asbestos by those who knew it was dangerous.
People most affected by asbestos are not necessarily the ones who have been com- pensated for their illnesses. Some reports indicate that millions of dollars have gone to those who have no medical evidence of impairment from asbestos. This is true because many people exposed to asbestos may not present symptoms for up to 40 years. Trying to sort through the victims’ claims is difficult. The FAIR Act of 2005 (and 2006) was proposed to help settle cases efficiently but it was criticized as set- ting a precedent that is both dangerous and unconstitutional.
Lawsuits stemming from asbestos contamination originating at the Libby, Montana, vermiculite mine represent some of the most serious cases of asbes- tos harm. A federal indictment alleges that as early as the late 1970s, officers of W.R. Grace & Co. knew that the vermiculite mined was laced with toxic tremolite asbestos. Officials gathered evidence internally using a number of methods, all leading to the same conclusion that dangerous asbestos levels were present and posed a health threat to workers. Although required by the Toxic Substance Control Act of 1976 to disclose this information to the EPA, W.R. Grace & Co. officials continued to withhold information about the find- ings (Schneider & McCumber 2004). The company also is charged with deny- ing access to NIOSH officials in the 1980s, when they attempted to test air quality and health conditions at the site. In addition to withholding health find- ings from employees and the EPA, Grace officials continued to distribute asbestos-laced vermiculite to processing plants and manufacturers all over the country and allowed it to be distributed throughout the Libby community for gardening and playground soil. For these reasons, it is impossible to estimate accurately the number of people affected by asbestos from Libby. The class action lawsuit received support when in February 2005, W.R. Grace and sev- eral top executives were indicted on federal charges for “knowingly exposing miners and residents in a small town to asbestos” (Associated Press 2005;
Johnson 2009).
Recently, progress was made toward resolution in both the federal trial and the criminal trial. In March of 2008, W.R. Grace agreed to pay $250 million to the federal government to cover the expenses related to the investigation and cleanup of Libby. This represents the highest sum in the history of the Superfund program (Associated Press 2005). The government has yet to receive the money, however;
the bankruptcy court must evaluate the judgment, along with other debts and claims against the company. In April 2008, the company agreed to pay $3 billion to victims of the Libby, Montana plant (Scott 2008). The company successfully delayed the class action lawsuit for years, but a final appeal to the Supreme Court was unsuc- cessful, as the Court refused to hear the case.
W.R. Grace and other companies peddling toxic substances are awaiting the outcome of the latest government action, which may eliminate the number of allow- able claims in the class action lawsuit. EPA’s latest effort is to change the level of danger currently designated for the different types of asbestos. In order to enact the change, a panel of experts was appointed, which has created a controversy:
In its final days in power, the Bush White House is rushing to have federal agencies water down the regulation of hazardous substances, lawmakers and public health experts say.
A panel of scientific advisers this week denounced an Environmental Protection Agency plan to quickly alter the way it measures the cancer-causing risk of asbestos, but the thumbs-down doesn’t prevent the agency from making the change anyway.
The latest eleventh-hour toxic sparring match comes while members of Congress are asking why the Labor Department has sent plans for sweeping changes in how workers are protected from chemical hazards directly to the White House Office of Management and Budget.
Many of the government scientists and physicians in the Labor Department and other agen- cies who are normally required to weigh in on these kinds of changes say they haven’t had a peek at the proposal.
Similar concern has been focused on the firing of John Howard, the popular director of the National Institute for Occupational Safety and Health.
People at EPA headquarters say the rush to have them change the way asbestos hazards are calculated is caused in part to OMB’s desire to appease the automotive, mining, construc- tion and chemical industries being sued for harm done by asbestos-containing material they’ve used or sold.
The 20 experts appointed to the Scientific Advisory Board’s asbestos panel were to evalu- ate the validity of the EPA’s plan to change how the toxicity of the six types of asbestos regulated by government differ in danger. The change centered on the EPA’s desire to ignore decades worth of what are considered solid studies documenting the actual hazard of the most common type of asbestos – chrysotile.
Instead, the EPA submitted other studies which, it said, showed chrysotile isn’t dangerous and doesn’t cause mesothelioma, an almost always fatal cancer, which often garners mul- timillion-dollar judgments in court cases brought by people sickened or killed by exposure to it (Schneider 2007, 2008).
The Libby, Montana case has drawn much media attention, including a Nightline television special in 2005 and a book, An air that kills: How the asbestos poisoning of Libby, Montana, uncovered a national scandal. One of the book’s authors is the reporter who first broke the story in the Seattle Post-Intelligencer in 2001 (Schneider
& McCumber 2004) and who continues to cover related stories (see above), although for a different newspaper.
September 11, 2001 Terrorist Attacks on the World Trade Center:
Asbestos Concerns
Except for asbestos-related litigation, asbestos was not in the news much until the terrorist attacks on the World Trade Center on September 11, 2001. The destruction of the World Trade Center renewed concerns for asbestos; EPA scientists took samples of dust as they were escaping from their building, which later tested to have four percent asbestos composition, much above current regulatory levels.
The city’s mayor at that time, Rudolph Giuliani, reported on television shortly after the attacks that initial health department tests did not raise concerns; asbestos and other toxins were not apparent in the samples studied (James 2001). A number of asbestos-related studies were conducted in the area, lasting until present.
The dust, smoke and debris composition were assessed and found to have extremely high pH content and contained many toxic materials, including asbestos (Landrigan et al. 2004).
Numerous missteps occurred during the months following the attack, due to the emergency communications break-down. For example, a few days after the terrorist
attack, residents in an apartment near Ground Zero cleaned their building using guidelines issued by the New York City (NYC) Department of Health (Weissenstein
& Ritter 2002). Private residents, not professional abatement workers, swept roofs and other areas both inside and outside of the structure. Seven months later the area was tested and found to have significantly higher levels of asbestos fibers than allowable regulatory levels. Many private residents, workers, firefighters, and oth- ers engaged in rescue, body retrieval, and cleanup of the area surrounding the for- mer World Trade Center site were found to be exposed to elevated levels of asbestos. The EPA had assigned the New York City Department of Environmental Protection (DEP) to monitor cleanup to ensure EPA standards were met and build- ings were safe before workers and residents reoccupied them. Within days of the attack, air quality monitors were placed all over the city and around the site to assess the air quality (Bowker 2003; Lyman 2003b).
In 2002, the city government of New York posted test results from a TEM test on air asbestos levels on the DEP website. There is a marked discrepancy between the data posted on the site and the results reported to the New York State Department of Environmental Conservation in November 2001. Specifically, results that origi- nally had been declared as having “excessive asbestos levels” were either deleted from the website report or changed to the reassuring, “not detected” (Lyman 2003a). The EPA was investigated by its Office of the Inspector General, which released a report in 2003 finding that the EPA’s response to September 11 (9/11) was mismanaged, citing at least ten areas of major concern, such as, “The agency did not have sufficient data to support its claim that air in Lower Manhattan follow- ing September 11 was ‘safe to breathe.’” It also criticized the tests used and the agency’s failure to test for all potential toxins one would expect to find with such a disaster. The report did not directly state the EPA knowingly deceived the public about safety of the city by concealing important test results, although some health advocates have disagreed (EPA 2003). Mayor Giuliani, now a failed presidential candidate for the 2008 primaries, was being criticized by firefighters and others who said they were not given proper guidelines to protect themselves from danger- ous carcinogens, in spite of having access to data early on regarding the risk levels for workers at the site (Lyman 2003b).
There are scores of EPA documents relating to the 9/11 terrorist attacks that describe terms of risk and asbestos levels; nearly 6 years later the actions by the city and envi- ronmental agencies are still under scrutiny and lawsuits have been filed. For example, even the peer-reviewed study of the EPA’s World Trade Center report (EPA 2003, 2004) was criticized; one of the independent peer reviewers had served as an expert defense witness in asbestos lawsuits. This led to the EPA Office of Inspector General issuing a 58-page report entitled, “Review of Conflict of Interest Allegations Pertaining to the Peer Review of EPA’s Draft Report, ‘Exposure and Human Health Evaluation of Airborne Pollution from the World Trade Center Disaster’” (EPA 2004).
Lyman’s 2003 report for the National Environmental Health Association,
“Messages in the Dust,” is a detailed analysis of the government’s response to the aftermath of 9/11 and the resulting cover-up. Lyman wrote the monograph to pro- vide a “lessons learned” account, so that mistakes would not be repeated.