Published on Friday, February 11, 2000 in the Seattle Post-Intelligencer
Asbestos -- It's The Killer That Won't Die
Failure to ban fiber in U.S. imperils more lives
by Andrew Schneider and Carol Smith
Almost everyone believes that the mining, production, sale and use of asbestos in America has been banned.
Almost everyone is wrong.
Doctors linked asbestos to deadly disease 100 years ago. Since then, tens of thousands of U.S. shipyard workers, construction workers, miners and others have died slowly and painfully from asbestos-related disease.
A quarter-century ago, three U.S. government worker-safety agencies and the World Health Organization declared asbestos a killer.
Twelve countries have outlawed the lethal, cancer-causing fiber and more nations are wading through diplomatic quagmires to do the same.
But it still remains legal to mine, import and sell asbestos in the United States.
The reasons for this are well-documented:
The result is that lives are still at risk.
Dr. Richard Lemen, former assistant surgeon general and deputy director of the National Institute for Occupational Safety and Health, was an observer and participant in many of the early battles to regulate asbestos until he left the government in 1996.
"The efforts of every government agency -- OSHA, NIOSH and EPA -- to limit exposure to asbestos were made more difficult when the Reagan administration came into the picture," says Lemen, who is now a professor at Emory University in Atlanta.
"For 12 years we had a Republican administration which was not ready to act upon ridding the country of that hazard."
President Reagan and J. Peter Grace, then chairman of the W.R. Grace Co., a leader in the asbestos industry, had a close association. In February 1982, Reagan named Grace to head a private-sector survey on government cost control, known thereafter as the Grace Commission.
Despite the White House opposition, the EPA was not shy in its early attempts to ban asbestos.
In the late 1970s, soon after the creation of the agency, its health and toxicology specialists began urging their bosses to do something about the abundance of asbestos-laced products.
Epidemiologists and other medical sleuths had tallied the body count at thousands of workers and their family members. With the support of then-President Carter, they had documented the risk to the public from exposure to consumer products containing the deadly fibers and extrapolated the number of funerals that would continue to occur if asbestos wasn't banned.
The asbestos industry did not sit silently by as the EPA worked to control the product it was mining, producing and selling. The industry's lobbyists doled out enormous campaign contributions to influential members of Congress to thwart or at least water down the agency's effort to ban the money-making fiber.
Still, the EPA experts soldiered on through the political and scientific minefield.
When Chuck Elkins became the EPA's director of the Office of Toxic Substances in 1986, the team he took over had already been working on the asbestos ban for more than five years.
"It took about 10 years and about $10 million to put the ban together," Elkins says. "But the science and medicine backing it was solid and clearly supported that at least 94 percent of all asbestos products should be banned."
In July 1989, the EPA issued regulations that banned the manufacture, importation, processing and selling of almost all products containing asbestos. The ban was to be implemented in three stages over nine years. This, the agency said, would permit industries using asbestos to find safe alternatives.
Almost instantly, U.S. asbestos manufacturers, supported by the governments of Canada and Quebec province, sued the EPA.
On Oct. 18, 1991, the 5th Circuit Court of Appeals in New Orleans overturned the ban.
"It was not unexpected," Elkins recalls. "The Canadians felt the ban was an anti-Canadian effort by the United States.
"We couldn't convince them that the EPA staff doesn't have the foggiest idea about foreign policy. This was strictly a public-health issue."
The three-judge appellate court did not take issue with the EPA's science or medical opinions on asbestos' health hazards. Rather, the judges faulted the agency for technical errors in the cost-benefit analysis required by the Toxic Substance Control Act.
The staff that developed the science and legal justification for the ban was devastated. It was the first time in the 14 years since the act was passed that the agency had actually used it to protect the public's health. A decade of work was negated.
Many memos were written by EPA staff members and scientists to then-EPA Administrator Bill Reilly, telling him that asbestos was still killing people and that the court ruling wasn't going to make that tragic fact disappear.
"Asbestos poses an unreasonable risk to human health and nothing can be done to diminish its lethality but banning it," one team of scientists wrote.
Reilly, who had frequently angered the Bush White House that appointed him by putting environmental health issues before political niceties, supported the concerns of his staff.
On Feb. 6, 1992, the EPA's general counsel asked the Justice Department to appeal the overturning of the ban to the U.S. Supreme Court.
Nothing happened. In fact, Justice never officially replied to the thoroughly documented 10-page plea.
"All we got was a verbal reply from Justice saying the administration didn't want to go forward, and by administration it was fairly obvious they meant the White House," says John Melone, the current director of the EPA's National Program Chemical Division.
Today, many members of the EPA's technical staff still say the rejected ban should be taken before the Supreme Court. They believe that the 5th Circuit's opinion would be overturned now.
Melone agrees with his staff on the chances of victory, but says the decision to appeal the ruling "would have to be made at a level a lot higher than me."
Melone and the EPA's regional asbestos experts have valid reason for concern. An enormous amount of asbestos products are moving through commerce in this country. The United States Geological Survey, which monitors all commercial activities involving minerals, says that in 1998 more than $300 million worth of asbestos products were imported or exported from the United States.
More than 3,000 products are traded in this country, including pipes, construction materials, floor tiles, abrasives for cutting and grinding, and aircraft and automotive brake parts.
EPA staff members are concerned that most people, even workers who routinely use products containing asbestos, don't know that there is no ban to protect them.
"People knew about the ban when we were trying to do it in the late '80s, but unfortunately they didn't get the message that the ban was overturned in 1991," says Neil Pflum, asbestos coordinator for the EPA's Region 5 in Dallas.
"Almost everyone thinks they're still protected."
The battle to eliminate the threat of asbestos continues, but on an international scale. In December, while viewers around the globe watched protesters mix it up with police in the Seattle streets, Canadian diplomats and scientists were duking it out with other nations over which asbestos fibers are dangerous.
Some U.S. diplomats are as puzzled as EPA officials in trying to pin down why the Canadians are so zealous in their defense of a Quebec industry that employs fewer than 1,600 miners.
"It's politics," says Steven Guilbeault, an environmental specialist with Greenpeace in Vancouver, B.C.
"It becomes understandable when you know the desire of the federal (Canadian) government to gain as much public support in Quebec as it can. Its support of Quebec's asbestos miners must be visible to prevent the sovereignist movement from using the argument that the federal government is in no position to defend the interest of the Quebec population."
France banned asbestos in 1997, but Canada is fighting the French efforts before the World Trade Organization courts, insisting that chrysotile, the asbestos that Canada exports, is not carcinogenic.
In the United States, the asbestos lobby continues to be enormous and powerful. In the last decade five leading asbestos-product companies alone and their political action committees have contributed $2.2 million to federal campaigns, led by the W.R. Grace Co. at $764,618.
"The industry has a responsibility to tell the truth but a poor record of doing so," Lemen says. "There were cover-ups of the hazards documented in the '30s and '40s, and through the '60s, '70s and '80s. They are going on to this present day.
"A group of responsible scientists has requested a ban on all new uses of asbestos.
"Why is the United States, a country that is advanced scientifically, not one of the leaders in banning a substance known for its toxicity for the last 100 years?
"The answer is political. No one is willing to go up against the asbestos companies. The U.S. government is not willing to go against the Canadian government.
"Meanwhile, the public continues to get exposures that will kill."