EPA warning on asbestos is under attack
BY ANDREW SCHNEIDER
©2003, St. Louis Post-Dispatch
Saturday, Oct. 25 2003
The federal government's 17-year effort to warn backyard and professional
mechanics of the dangers of cancer-causing asbestos in brakes is under attack.
The international law firm of Morgan, Lewis & Bockius has petitioned the
Environmental Protection Agency to stop distributing warning booklets, posters
and videotapes that give mechanics guidance on the need to protect themselves
from asbestos. The 10-page petition called the science on which the material
was based unproven and irrational.
The firm said the EPA's guidance for mechanics had been used to support
thousands of personal injury lawsuits brought against hundreds of American
companies by mechanics. The suits involving the auto workers alleged they were
sickened or killed by exposure to asbestos in brakes.
The firm refused repeated requests to identify its client in the
effort to stop the booklets, but it has represented at least one major asbestos
firm and two insurance companies involved in asbestos litigation.
The lawyers took their action under an obscure law passed in 2001 called the
Data Quality Act. It demands that government agencies work with the White
House's Office of Management and Budget to establish a process that permits
"affected persons" to challenge information gathered and disseminated by the
government.
Rep. Jo Ann Emerson, R-Mo., said she introduced the four-paragraph measure as a
rider to an appropriation bill "to ensure accountability to the taxpayer."
Emerson's staff said the language for the law came from Jim Tozzi. He is the
director of the Center for Regulatory Effectiveness, an industry-funded group
scrutinizing government regulations. Tozzi worked for the Office of Management
and Budget during the Nixon, Ford, Carter and Reagan administrations.
Still a threat
Court filings and public health surveys indicate that thousands of auto workers
are diagnosed each year with asbestos-related diseases, such as mesothelioma,
lung cancer and asbestosis. Few mechanics take protective measures when working
with brakes - mainly, they say, because they believe asbestos is no longer
present.
They are wrong. Although the major car makers say they no longer use asbestos,
the brakes on many older cars contain the fibers. More than $124 million worth
of asbestos brake material was imported into the United States last year. Thus,
the potential danger will exist for decades as replacement brakes containing
asbestos continue to be put on vehicles.
The Post-Dispatch talked to about two dozen St. Louis mechanics or garage
managers. All but two said that asbestos had been banned and is no longer in
brakes.
Leaving no fingerprints
Dr. Sidney Shapiro, a law professor at the University of Kansas who has written
and lectured on the value and danger of the information act, said he is
concerned that "the legislation opens the door for corporations and trade
associations to attack any scientific information that EPA makes public, and
asbestos is a fine example." Shapiro is with the Center for Progressive
Regulation, a group that examines regulations on environmental and consumer
interests.
He added: "The act is also a great tool for OMB to try to influence policy
because their involvement won't leave any fingerprints."
The White House is already being heavily criticized by some lawmakers for its
Council on Environmental Quality, which guides the president on environmental
issues, and allegations that the Office of Management and Budget is influencing
the actions of the EPA. The budget agency counters that it doesn't
meddle in the agency's Data Quality Act decisions.
"The Act itself places us in a broad oversight role but does not specify how
the OMB-agency relationship should be handled," said a senior OMB official.
"OMB has encouraged agencies to consult with us before they respond. However,
it is the agencies that decide how to respond."
The Gold Book
The law firm, based in Philadelphia, says the dire warnings regarding asbestos
exposure have no scientific basis. It has demanded that the EPA renounce years
of extensive studies that state otherwise.
The main target in their petition is a thin gold-colored EPA pamphlet titled
"Guidance for Preventing Asbestos Disease Among Auto Mechanics." Tens of
thousands of copies of the Gold Book and other asbestos warning material have
been distributed to schools, garages, auto dealers and unions since they were
first published 17 years ago.
For two years in the mid-'80s, the EPA and asbestos experts from the
Occupational Safety and Health Administration gathered extensive research on
exposure to mechanics from leading government and civilian scientists.
The petition says that the EPA has it all wrong and that brake repair work is
safe.
"The continuing availability of the Gold Book, and its alarmist and
inflammatory tone continues to hinder a fair-minded assessment of the hazards,
if any, imposed to users of asbestos-containing friction products," the
petition states.
Steve Johnson, the acting deputy administrator of the EPA, said the Gold Book
was being revised before the petition arrived, but he insisted that the science
upon which the guide was based was "solid" and "we stand by it today." Over the
past few years, "we've learned a great deal more about asbestos and its
dangers, which are significant," Johnson said. "We are looking at all of our
asbestos programs to ensure that they reflect the latest information on the
hazards."
Johnson said he wasn't permitted to discuss the EPA's position on the petition
but said a decision would be made by Nov. 24.
Thousands of suits
The lawyers said they are concerned about what happens in court.
"In the highly charged environment of such litigation, the Gold Book has been
used to try to sway jurors, who are told that it represents EPA's current
position and thinking on the question of whether asbestos-containing friction
products are dangerous to users.
"Outside the courtroom," the petition reads, "continuing availability of the
Gold Book, and its alarmist and inflammatory tone, hinders a fair-minded
assessment of the hazards, if any, posed to users of asbestos containing
friction material."
Ernie Conry, a retired mechanic, is involved in a suit. He is sick. He has
mesothelioma, a fast-killing form of cancer caused only by exposure to
asbestos. It usually is fatal within eight to 10 months. It has been 22 months
since his doctor diagnosed the disease.
"I'm lucky. Very lucky," said Conry, 70. "My younger brother had mesothelioma
from the Navy, and he died 12 months to the day from when he was told he had
the disease. Just wasted away."
For a man told he only had months to live, Conry looked healthy. He held up an
X-ray of his lungs and ran a weathered finger along the gray shadow of the
fast-spreading tumor. He doesn't need to look at the X-ray. The pain reminds
him that he's sick all the time, he said.
Conry worked on brakes in various Ford garages in St. Louis. He said he was
never told to wear a respirator or to be cautious. His blue eyes sparkle with
anger when he speaks of never being told about asbestos in brakes.
"Nobody told us then and no one is telling the guys changing brakes today they
had better be careful because they may be covering themselves with asbestos in
the dust from the brakes," Conry said. "It's like a secret. A deadly secret."
He prints up his own fliers warning of the dangers and hands them out at union
halls and in gas stations. He admits that few take it seriously.
"If I can just save one guy, one other human from suffering the pain that I
live with, then it's worth it," he said and paused for a moment. "But you know,
they don't really believe me."
On Thursday morning, Bob Wind was hammering loose a brake drum from a 1996 Ford
Escort at B&B Muffler & Service at Chippewa Street and Nebraska Avenue. Black
dust and grime covered his clothes and the floor beneath the car. There was no
visual way to tell whether the dust contained asbestos. "You just can't get
away from the dust. It's everywhere: your hair, your nose, your eyes," Wind
said.
He was surprised to learn that some brakes still contained asbestos. "I thought
it was outlawed years ago," said the mechanic. "I've never seen anyone wear a
mask in a garage. Never."
Wind was amazed when a Post-Dispatch photographer showed him a box of
replacement brakes in his own storeroom that said "Caution. Contains Asbestos
Fibers."
"I just can't believe it," he said squinting to read the small type. Another
box said "100 percent asbestos free." But on the back of the box, in even
smaller type, was written: "Product may contain a chemical fiber know to the
state of California to cause cancer."
Who protects the mechanics?
The EPA says that its regulations direct it to worry about the safety of home
mechanics and students, but that OSHA has the responsibility for the workers.
An examination by the Post-Dispatch of 31 years of OSHA inspection records
shows that nationwide, fewer then ten gas stations a year had been cited for
asbestos problems.
Richard Fairfax, OSHA's director of enforcement, said in a telephone interview
that OSHA does not have a national program on asbestos exposure.
"I know we've done sampling. Going through the old inspection reports I found a
couple that I did," Fairfax said. When asked when his were done, he answered:
"A long time ago. In the '70s."
In 20 phone calls to various OSHA regional offices and some of the states
designated to do their own OSHA inspections, the Post-Dispatch found no one who
could recall the last time they'd actually tested for asbestos in a gas station
or garage.
"Most of the operations are small businesses and do not have a lot of
employees. Our targeting system is geared at employers with 40 or more
workers," Fairfax said.
Fairfax said he had no opinion "either way" when asked whether asbestos
exposure to brake workers was a health concern.
But the National Institute of Occupational Safety and Health, OSHA's research
arm, has conducted repeated studies over the years documenting the dangers of
asbestos, not only to mechanics but also to their family members who may be
exposed to asbestos on their work clothes and to others in the garage area
exposed to large amounts of asbestos in the air.
As far back as 1975, NIOSH had many recommendations on protecting workers,
including the posting of warning signs in garages saying "Breathing Asbestos
Dust May Cause Asbestosis or Cancer."
But many proposals were ignored, said Dr. Richard Lemen, a former director of
NIOSH and an assistant U.S. surgeon general.
"NIOSH cared. EPA cared. It was as if the rest of government didn't really care
about the health of these mechanics and their families," Lemen said.
"Eliminating EPA guidance is absurd. The risks from asbestos still exist and
unless meaningful actions are taken by the government, mechanics, and all too
often, their family members, will continue to die."
Last week, five members of various House committees wrote to the heads of the
EPA and OSHA expressing concern that neither agency "appears to be monitoring
the risk of asbestos exposure to mechanics and ensuring that protections are in
place."
The five lawmakers urged the EPA not to withdraw the brake guidance, saying "it
would mislead the public by conveying the false impression that asbestos
exposure from brake repair work was no longer a risk."
Other public health experts shared their views.
"In making this move on EPA, the law firm seeks to justify corporate
suppression of warnings in the past with government suppression of warnings
today," said Dr. Barry Castleman, a national authority on asbestos and health
issues. "The loser in this gambit is the public."
Post-Dispatch photographer Andrew Cutraro assisted in the reporting of
this story .
Andrew Schneider:
E-mail: aschneider@post-dispatch.com
Phone: 314-340-8101 |