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we need a clean language act
November 5, 2005. There are very few certainties in this life but one of them seems to be that if the government calls a law The Clean Air Act the air will probably get dirtier. Anything called The Tort Reform Act or Class Action Fairness Act is unlikely to have any interest in tort reform and is probably designed to protect corporations from being sued while protecting the right of corporations to sue as they see fit.* So, what are we to make of a bill called The Fairness in Asbestos Injury Resolution Act (the FAIR Act--isn't that clever?)? The bill is sponsored by Patrick Leahy, the highest ranking Democrat in the Senate, and Senate Judiciary Committee chairman Arlen Specter. Is this bill just a fancy way of pretending to help the victims of years of abuse by mining companies while actually making sure that those companies don't get sued too badly for all their wrongdoing? Many people in Libby, Montana, seem to think so.
The Fairness in Asbestos Injury Resolution Act establishes a $140 billion privately financed trust fund that would compensate asbestos claimants who agree to give up their right to sue. That sounds like a lot of money, but the extent of the asbestos poisoning is so vast that even that huge amount wouldn't begin to pay for the damage that has been done over the past forty years. The bill also caps liability for companies that made or sold products containing asbestos. Companies routinely declare bankruptcy to avoid having to pay out huge settlements because of lawsuits. To avoid paying out on asbestos claims scores of U.S. companies have filed for bankruptcy.* More than 250,000 asbestos-related suits have been filed against just one company, W. R. Grace & Co.* The company has closed its mine in Libby and has declared bankruptcy, restructured itself, and continues to make about $1.4 billion in sales per year.
Last February, W.R. Grace & Co. and seven current or former executives were indicted in federal court in Missoula, Montana, for breaking environmental laws and conspiring to cover up what the Environmental Protection Agency (EPA) has described as the biggest environmental disaster to human health it has ever faced.
According to the EPA,
W.R. Grace and its executives, as far back as the 1970’s, attempted to hide the fact that toxic asbestos was present in vermiculite products at the company’s Libby, Montana plant. The grand jury charged the defendants with conspiring to conceal information about the hazardous nature of the company’s asbestos contaminated vermiculite products, obstructing the government’s clean-up efforts, and wire fraud. To date, according to the indictment, approximately 1,200 residents [out of a population of about 3,000] of Libby have been identified as suffering from some kind of asbestos-related abnormality.
A mortality review, which compared death rates for residents of the Libby area with those in Montana and the United States for selected diseases associated with exposure to asbestos found that for the 20-year period examined (1979–1998) mortality from asbestosis was approximately 40 times higher than the rest of Montana and 60 times higher than the rest of the United States.* Another report claims that asbestos from the now-closed vermiculite mine on a mountain near Libby has killed 192 people and left at least 375 with fatal diseases. Thousands more who live or grew up in Libby are expected to die from asbestos-related diseases in the coming decades.* The asbestos fibers contaminated not only workers at the mine, but also their families when they brought home the asbestos fibers on their clothing and in their hair. Even local ball fields and an athletic track were contaminated from fallout and fill.
Grace shipped its asbestos contaminated vermiculite, called Zonolite® Attic Insulation, to 42 states. The product is in the walls and attics of millions of American homes. (Note: not all vermiculite is contaminated with asbestos.*) Our government has responded by protecting the ones who made and shipped the Zonolite® when it should be trying to protect the millions of people who are affected by it every day: firefighters, plumbers, construction workers doing remodels or demolition, and so on, not to mention all the people living in those homes. Our government won't even spend a few bucks to notify us of the problem. The EPA had planned to put notices in hardware stores across the country and have representatives go on talk shows to spread the word about the potential dangers of Zonolite. They've been ordered to do no more than post some information on their website. To find out about the asbestos danger, we have to see a movie with John Travolta ("A Civil Action"), read a newspaper, watch "Nightline", stumble upon some blogger's site, or go to the EPA's web page on vermiculite. The worst thing you can do if you suspect you have Zonolite insulation is to try to remove it yourself. To do so could be hazardous to your health. The EPA recommends the following:
If possible, leave the insulation undisturbed. Asbestos fibers will not become airborne if the insulation is well contained. If the vermiculite is sealed behind wallboards and floorboards or is isolated in an attic that is vented outside, the best approach to avoid exposure to asbestos is to keep the vermiculite in place. If a ventilation system within the attic disturbs the material, it may be appropriate to have the air tested in your home.
Until there are better methods to analyze for asbestos in vermiculite, and to know what that means in terms of risk, it is best to assume the material may contain asbestos. If you decide to remove the vermiculite home insulation, use accredited, licensed asbestos removal professionals. Use of a “negative pressure enclosure” technique will prevent asbestos fibers and dust from escaping from the attic into the rest of the home. Do not attempt to do this yourself. You could spread asbestos fibers throughout your home, putting you and your family at risk of inhaling asbestos fibers. (EPA)
Last June President Bush responded by appointing lawyer and engineer Granta Y. Nakayama as head of the Office of Enforcement and Compliance Assurance (OECA), the enforcement division of the EPA. At the time of his appointment, Nakayama was serving as a "Partner for Environmental Law and Product Safety" at Kirkland & Ellis, a law firm in Washington, DC, that is representing Grace in its troubles with the federal government. The Senate confirmed Nakayama on July 29, 2005. Nakayama's law firm helped Grace file for bankruptcy and restructure so it could continue in business.
In January, in his state of the union address, Bush forewarned us: "Justice is distorted, and our economy is held back by irresponsible class-actions and frivolous asbestos claims -- and I urge Congress to pass legal reforms this year." Is a translation needed?
The "Nightline" report was especially disturbing. The
evidence is strong that the executives at Grace knew about the dangers of
their product as far back as the 1960s, even before they bought the
vermiculite mine in Libby. They suppressed evidence not only
about their product but about the health of their employees. For more than
thirty years they knowingly sent out a dangerous product that would be used in
somewhere between 15 and 30
million homes across America. True patriots, these fellows. And true
patriots the politicians who are stepping in the protect such kinds from
suffering serious financial consequences for their
attack upon millions of
Grace's company slogan is "Enriching Lives, Everywhere."
Junk Science??? (Grace is a major contributor to the "sound science" coalition, a group of politicians who use clever tactics to protect companies who have very little interest in protecting the environment or the health of the public. Other supporters include Phillip Morris, 3M, Amoco, Chevron, Dow Chemical, Exxon, General Motors, and Occidental Petroleum. See Chris Mooney's The Republican War on Science for more on this "sound science" doublespeak.
"Junk Science and Environmental Policy: Obscuring Public Debate with Misleading Discourse" by Charles N. Herrick and Dale Jamieson. (Although the term "junk science" has become a fixture in the popular media, content analysis of news stories for a five-year period reveals almost no evidence of substantive or procedural inadequacies in the science used to support environmental or public health policies. Instead, the charge of "junk science" is meaningful primarily from a political or ideological perspective, and plays a strategic role in contrarian, anti-regulatory discourse.)
update: May 9, 2009. W.R. Grace acquitted in Montana asbestos case "A jury Friday acquitted W.R. Grace & Company and three of its former executives of having knowingly exposed mine workers and residents of Libby, Montana, to asbestos....Federal prosecutors had accused the mining company and its executives of exposing Libby's 100,000 residents to asbestos for decades, resulting in more than 200 deaths and 1,000 illnesses. The product covered patches of grass, dusted the tops of cars and drifted through the air in a hazy smoke that became a part of residents' daily lives ." The indictment said W.R. Grace tried to "defraud the United States and others by impairing, impeding, and frustrating" the Environmental Protection Agency and other government agencies once they launched an investigation in 1999.
update: June 21, 2009 . Asbestos emergency declared in Libby, Montana "The EPA declared a public health emergency in Libby, Mont., after decades of asbestos-related diseases and deaths in the tiny community. Hundreds of people there have died and thousands have been sickened by a poisonous legacy of mining. W.R. Grace & Co. and its officials were acquitted in May of charges that officials knowingly concealed the dangers of mining asbestos-contaminated vermiculite. The company supplied more than 70% of U.S. vermiculite, a mineral used for insulation, from 1919 to 1990."
update: September 25, 2009. Mesothelioma Risk Reduction: Asbestos Cleanup Underway at Montana Golf Course "Work crews garbed in white protective suits and filtered breathing masks are digging up substantial amounts of topsoil polluted with the mineral vermiculite from part of a golf course near the small town of Libby, Montana. While the older portion of the course is undergoing an extensive decontamination operation, investigators have not detected any problems on the newer part of the course at the Cabinet View Country Club."