Disenfranchising Those with Lung Cancer
Into Thin Air
Disenfranchising Those with Lung Cancer
More than 10,000 people a year die from asbestos disease, 5,000 of them from asbestos-caused lung cancer. It is precisely people like these, those most seriously harmed and dying from asbestos disease, that the Senate leadership has claimed to be helping with its series of asbestos trust fund bills. Few proposals have lived up to that claim, but the current proposal is perhaps the cruelest of all to date.
The Specter/Leahy asbestos bill delivers unusually harsh treatment to victims of asbestos-caused lung cancer. First, the bill establishes criteria that are not recognized by the American Lung Association or the American Thoracic Society requiring that all lung cancer victims also have advanced-stage non-cancer asbestos disease in order to qualify for any level of assistance. But the more insidious disenfranchisement of lung cancer victims becomes apparent only when the exposure criteria in the bill are applied to a sample applicant.
W.R. Grace Company Indicted
on Federal Criminal Charges
This analysis reveals that the Specter/Leahy bill denies any and all compensation to people with confirmed asbestos-caused lung cancer if they entered the workforce after 1978, just four years after the peak of asbestos use in the U.S. of 1.4 billion pounds annually. Like all asbestos victims seeking justice, they will have their cases thrown out of court. But lung cancer victims whose asbestos exposure started after 1978 will never receive a penny from the fund because it will have expired before they can accumulate enough asbestos exposure under the newly minted exposure criteria in the bill. This disenfranchisement would affect even those people with asbestos-caused lung cancer who worked every year from 1978 through the termination of the fund in 2035 in what is characterized euphemistically as a "moderate" exposure environment, defined as working:
"in areas immediate to where asbestos-containing products were being installed, repaired, or removed under circumstances that involved regular airborne emissions of asbestos fibers." (Section 121 (a) 16 (B))
For some lung cancer victims, compensation is even less likely. All individuals with a level VII claim, confirmed asbestos-caused lung cancer with bilateral pleural plaques, will have compensation denied if workplace exposure began after 1974. Lung cancer has a five-year mortality rate of 95 percent.
The reason that all of these lung cancer victims receive nothing is the convoluted exposure criteria in the bill. These criteria declare, without any medical substantiation to support them, that every year of continuous daily exposure to asbestos that occurred after 1976 counts as just one half year, and if that exposure occurred after 1986, it counts only as one tenth of a year, or 36.5 days (Section 121 (a) 16 (E)).
There is no medical or scientific rationale for devaluing a year of work exposure to "regular airborne emissions of asbestos" by 50 percent if that exposure was between 1976 and 1985 and by 90 percent if exposure took place after 1986. Asbestos use peaked in the U.S. in 1974, at 1.4 billion pounds; use in 1976 was clearly over 1 billion pounds, and workplace safety standards recommended by the National Institute of Occupational Safety and Health (NIOSH) were not adopted by the Occupational Safety and Health Administration (OSHA) until 1994 (NIOSH 2002), a full 18 years after the bill begins to devalue a year's worth of work around asbestos.
Nor would full compliance with the OSHA standard mean that workers would not die at an excessively high rate from asbestos-caused lung cancer. The preamble to the OSHA standard itself estimates that one in every 300 workers will develop lung cancer from exposure at the legal limit (OSHA 1986). A more recent assessment concludes that one in every 200 workers will develop lung cancer if they are exposed to a career's worth of asbestos at the OSHA "safe" level.
Compliance with OSHA's permissive standard is spotty. In 1999, asbestos air levels exceeded the far weaker pre-1980 "permissible exposure limit" at 13 percent of construction and 5.6 percent of manufacturing sites monitored (NIOSH 2002). This pre-1980 limit, which was established by the Mine Safety and Health Administration (MSHA) and still applies to mining, is 20 times less protective than the 1994 OSHA standard (0.1f/cc vs. 2 f/cc). Between 19 and 91 percent of all mining sites sampled between 1982 and 1991 exceeded the 1994 OSHA standard. In 1991, 32.4 percent of mining sites sampled exceeded this level.
An example of the Specter/Leahy criteria
The unfairness of the Specter/Leahy criteria are best understood by applying them to a hypothetical applicant to the fund who has lung cancer. For lung cancer level VII (with bilateral pleural disease) a person filing a claim with the trust would need 12 years of weighted exposure (pg 82). If exposure started in 1971, it would take 34 years of continuous exposure to meet the 12-year exposure requirement in the bill. This person, and everyone beginning continuous exposure in 1971 or earlier, would qualify for compensation, assuming all other criteria are met.
For every year past 1971 that the person started working with asbestos under the "moderate exposure" criteria described above, it will take an extra 10 years of occupational exposure to meet the criteria for compensation in the bill. Thus, a person with asbestos-caused lung cancer and pleural plaques who began occupational exposure in 1974 would need 52 years of work exposure (through 2035, or "until" 2036) to meet the 12 year weighted exposure criteria in the bill. After that, the fund will have been terminated.
1974 - 1975 each year counts as a full year - total 2 years
1976 - 1985 each year counts as one half year - total 5 years
1986 - 2035 each year counts as one tenth year - total 5 years
Asbestos Company Indicted
W.R. Grace Company Indicted on Federal Criminal Charges
On February 7, 2005, a federal grand jury for the first time ever handed down a multi-count criminal indictment against officials at an asbestos company, W.R. Grace, charging them with withholding numerous studies spelling out the dangers that asbestos posed to its customers, employees and residents of Libby, Montana. This indictment may call into question the $140 billion bail-out plan currently being considered by the United States Senate. Although asbestos litigation has been called "frivolous" by President Bush, who supports the plan, the U.S. Attorney of Montana has found potential criminal wrongdoing on the part of one of the largest asbestos companies in the world. The indictment charges W.R. Grace and seven of its executives with criminal conspiracy, fraud and knowing endangerment in connection with its operation of an asbestos-contaminated mine in Libby, Montana. The prosecutor, William Mercer, called the situation "a human and environmental tragedy." According to the indictment, W.R. Grace's operation of the mine has endangered the health of the 8,000 Libby residents and cost taxpayers over $55 million in environmental clean-up costs alone, an amount which pales in comparison to the corporate profits gained by stockholders in the company, some $140 million between 1976 and 1990.
W.R. Grace Indictment
The indictment alleges that the company was aware of several studies documenting the dangers of asbestos exposure, but concealed this knowledge from EPA officials. These studies include a 1976 study which revealed a high incidence of asbestos-related lung problems in Libby employees; an animal study finding cancer in hamsters exposed to the asbestos fibers present at the mine; a 1981 health study of employees showing a high rate of asbestos-related lung problems; a 1982 mortality study showing a high incidence of respiratory cancers in Libby employees; and several specific case studies of employees with lung diseases.
The charges in the indictment mirror behavior that has often been cited in the asbestos personal injury litigation. The documentation of the corporate knowledge of the dangers of asbestos is extensive. Many of these documents can be found in the EWG report, "Asbestos: Think Again," at www.ewg.org. Much like the documentation cited in the W.R. Grace indictment, asbestos victims have proven in court that companies knowingly concealed information regarding the hazards associated with asbestos from their workers, marketed and sold products containing asbestos despite these dangers, failed to provide workers with proper protections, and profited enormously from this cover-up.
Although these companies complain that liability for their disturbing acts has led them into financial ruin, their own statements, and a closer assessment of these "bankruptcies," reveal that the companies continue to thrive, and that the "bankruptcies" protect the corporations far more than they help the victims of asbestos injuries.
The plant has had a devastating impact on the health of Libby residents, resulting from hazards, which the indictment alleges W.R. Grace knew of as early as 1976. In the 30-year operation of the mine, in a town of 8,000 people, 200 people have died, and 1,200 are suffering from asbestos-related illnesses, many of whom never worked at the plant. The incidence of asbestos mortality in Libby is up to 80 times higher than in the general population. The rate of lung cancer death in Libby is 30% higher. Because asbestos injuries can have a latency period that lasts 40 years or longer, the situation will likely worsen.
Update: Problems Common Across U.S.
News Reports Highlight Communities' Asbestos Problem Common Across US
Today the Senate marks up a $140 billion asbestos bill that tries to help some workers who are sick and dying from asbestos. As today's Oakland Tribune and Sacramento Bee report, one community in California is concerned about its recent discovery that homes and schools were built on a vein of naturally occurring asbestos, but that residents there would face huge hurdles to be eligible for help under the Senate bill because they did not work directly with asbestos. This town raises questions that neighbors of 40 other asbestos "hotspots" could soon be asking.
Federal data reported by the EWG Action Fund identify 40 locations across the country that collectively received 3.9 million tons of deadly asbestos-contaminated vermiculite from Libby, Montana. Many people living near these sites breathed asbestos for years, even decades, and are at elevated risks for asbestos diseases, several of which are fatal. Officials from two federal agencies have acknowledged these risks and are investigating the 29 sites that received the most Libby asbestos.
Find out if you live near a place that shipped and received over 10,000 tons of asbestos here.
Will the bill help anyone who did not work directly with asbestos? Federal mortality statistics for asbestos disease show hundreds of asbestos deaths for elementary and secondary school teachers and hospital workers, who would not qualify for assistance under the Specter/Leahy occupational exposure criteria (National Center for Health Statistics 2004).
Top 5 Occupations for Asbestos Disease Mortality, 1985 to 1999
- Non-paid worker or non worker at home — 644
- Construction — 377
- Elementary and secondary schools — 137
- Hospitals — 87
- General government, n.e.c. — 74
Source: Compiled from Centers for Disease Control and Prevention (CDC), National Center for Health Statistics (NCHS), multiple cause of death file 1985-1999. For full list of occupations and mortality, visit https://www.ewg.org/research/asbestos-think-again/millions-were-exposed-were-you-0.
Update: Letter to Asbestos Judge
Judge Becker: Asbestos Arbiter —
FAIR or Unfair?
Judge Edward Becker of the U.S. Circuit Court in Philadelphia was asked by Senate leaders to oversee negotiations around a compromise asbestos trust fund bill. In a letter to Judge Becker, EWG President Ken Cook argues that he has ignored the needs of people who are sick and dying of asbestos disease.
May 24, 2005
Honorable Edward R. Becker
19613 United States Courthouse
601 Market Street
Philadelphia, PA 19106
By Fax: 215-597-7217
Dear Judge Becker,
I have obtained a copy of your May 18, 2005 letter to Senator Dianne Feinstein (attached). It has prompted me to express my long-held concern that your involvement in pushing the Senate to pass S.852, the asbestos trust fund bill known as FAIR, has become overtly unfair, emphasizing the relief of companies that face asbestos-related liability far more than the relief of tens of thousands of people facing asbestos-related diseases.
In your letter to Senator Feinstein, you cover four specific "difficulties that the business and insurance stakeholders have identified" in the bill as it currently stands. As was the case with your testimony before the Senate as markup commenced, you address none of the difficulties the sick and dying have with the bill — mainly, that those who will get sick in the future will be left with no chance of financial help in coping with long-term health problems and, in many cases, near-certain death.
Allow me to respectfully submit two difficulties identified by stakeholders who actually represent the public's interest in this legislation.
First, as you know, the U.S. Department of Justice's (DOJ's) recent criminal indictment of senior executives at W.R. Grace makes it clear that people who simply lived in Libby, Montana, where asbestos was mined, are at increased risk of asbestos cancers and lung diseases — even if they never worked at W.R. Grace itself. What you might not know is that the asbestos from Libby was processed in some 200 facilities across the country. Drawing on company records compiled by the Environmental Protection Agency (EPA), but not previously made public, we have documented and mapped these sites on our Website, www.ewg.org. The map shows just how much of the country has a public health stake in what the Senate decides.
People who lived near these plants were exposed to elevated levels of airborne asbestos drifting from these sites according to two federal agencies, the Agency for Toxic Substances Disease Registry (ATSDR) and EPA. The agencies are jointly conducting formal public health and environmental assessments in 28 locations where the Libby asbestos was shipped and processed. I am at a loss to understand why these people's difficulties don't merit your intercession — which amounts, in my view, to lobbying — while powerful industries do.
Second, there are reasons why the medical and exposure criteria you developed for trust fund eligibility in FAIR are not recognized by the two relevant medical associations, the American Thoracic Society (ATS) and the American Lung Association (ALA). These same reasons also explain why not one independent medical expert can endorse these criteria; the standards don't represent medicine, they represent accounting. And it is accounting that is tilted most unfairly to favor liable companies. If there is any sound medical reason for these wholly fabricated criteria, I have yet to hear it. Until then, I can only assume that they are designed to keep the trust fund within a budget to which industry "stakeholders" will agree.
Attached to your May 18 letter are several pages of legislative language satisfying the concerns of a small group of manufacturing and insurance interests. I assume that this is because they are the ones who drafted it. This is language that you invited, as a representative of Senator Specter, and which you duly passed along to Senator Feinstein.
Your investment of time in trying to resolve this impasse is laudable. However, I suggest that until the people who will be permanently, personally, and irreversibly affected by this legislation get the same kind of access and attention you have afforded the business lobby, no one can morally refer to S. 852 as FAIR.
Kenneth Cook, President
Environmental Working Group
Cc: Senator Arlen Specter, Senator Patrick Leahy
National Institute for Occupational Safety and Health (NIOSH) (2002). "Work-related lung disease surveillance report." Division of Respiratory Disease Studies.
Occupational Safety and Health Administration (OSHA). (1986). "Final Rule: Asbestos." 51 FR 22612. Department of Labor, Occupational Safety and Health Administration. June 20, Federal Register.