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asbestos
Industry Braces for PFAS Lawsuits That Could 'Dwarf' Those of Asbestos, Tobacco
The warning of litigation to plastics makers comes as EPA is accused of failing to adequately test for "forever chemicals" in pesticides.
May 29, 2024
A newly reported warning to the plastics industry and a complaint filed by an environmental nonprofit this week highlighted how companies and the U.S. government have endangered the public with "forever chemical" contamination.
Per- and polyfluoroalkyl substances (PFAS) are commonly called forever chemicals because they remain in the human body and environment for long periods. They have been used in products such as firefighting foam, food packaging, stain-resistant fabrics, and pesticides, and linked to various health problems including cancers and issues with reproduction.
The New York Timesreported Tuesday that attorney Brian Gross recently told plastics executives that looming corporate liability litigation related to PFAS—some of which has already begun—could "dwarf anything related to asbestos," and lead to "astronomical" costs.
As the newspaper detailed:
"Do what you can, while you can, before you get sued," Mr. Gross said at the February session, according to a recording of the event made by a participant and examined by The New York Times. "Review any marketing materials or other communications that you've had with your customers, with your suppliers, see whether there's anything in those documents that's problematic to your defense," he said. "Weed out people and find the right witness to represent your company."
A spokesman for Mr. Gross' employer, MG+M The Law Firm, which defends companies in high-stakes litigation, didn't respond to questions about Mr. Gross' remarks and said he was unavailable to discuss them.
While Gross declined to comment, Emily M. Lamond, who focuses on environmental law at the firm Cole Schotz, told the Times that "to say that the floodgates are opening is an understatement."
"Take tobacco, asbestos, MTBE, combine them, and I think we're still going to see more PFAS-related litigation," Lamond said, referring to methyl tert-butyl ether. The newspaper noted that "together, the trio led to claims totaling hundreds of billions of dollars."
Back in 2005, the U.S. Environmental Protection Agency announced that DuPont would "pay $10.25 million—the largest civil administrative penalty EPA has ever obtained under any federal environmental statute—to settle violations alleged by EPA" related to PFAS and commit to $6.25 million for supplemental environmental projects.
The EPA has also taken more recent actions under President Joe Biden's "PFAS Strategic Roadmap," including designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Superfund law and setting the country's first-ever drinking water standards for those and other forever chemicals.
The Biden administration's steps, as the Times pointed out, are expected to fuel future litigation. Green groups have called the EPA's recent moves progress but not nearly enough—and as Capital Breported earlier this month, there are concerns that PFAS cleanup could disproportionately burden communities home to the working class and people of color.
On top of calls to go further with regulation and cleanup efforts, the EPA is facing pressure to retract what Public Employees for Environmental Responsibility (PEER) called "false statements" in a 2023 agency research memo and press release. The group filed a formal complaint with the EPA on Tuesday demanding a correction.
"This memo is some of the worst science I have seen come out of the agency," said PEER science policy director Kyla Bennett, a scientist and former EPA attorney, in a statement. "The fact that EPA claimed it could not find any PFAS in samples deliberately spiked is incredibly troubling."
"Scientists around the world are finding PFAS in pesticides from active and inert ingredients, contamination from fluorinated containers, and unknown sources," she continued. "EPA's claim that it 'did not find any PFAS' in these pesticides is not only untrue but lulls the public into a false sense of security that these products are PFAS-free."
Asked about PEER's submission by journalist Carey Gillam, the agency—which has 90 days to respond—said that "because these issues relate to a pending formal complaint process, EPA has no further information to provide."
Gillam reported that "joining in the allegations is environmental toxicologist Steven Lasee, who authored the 2022 study that the EPA challenged. Lasee is a consultant for state and federal government agencies on PFAS contamination projects and participated as a research fellow for the EPA's Office of Research and Development from February 2021 to February 2023."
As Gillam detailed at New Lede and The Guardian:
Amid the uproar over his paper and the subsequent EPA testing, Lasee sought to reproduce his initial results but was unable to do so. That created enough doubt about his own methodology that he sought to retract his paper.
Now, after seeing the EPA's internal testing data showing the agency did find PFOS and other types of PFAS in pesticides but failed to disclose those results, he has a new level of doubt—over the credibility of the agency.
"When you cherrypick data, you can make it say whatever you want it to say," Lasee said.
PEER's Bennett similarly said that "you don't get to just ignore the stuff that doesn't support your hypothesis. That is not science. That is corruption. I can only think that they were getting pressure from pesticide companies."
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The US Has Taken Too Long to ‘Slam the Door’ on Asbestos
The protracted journey to any kind of asbestos ban is a sobering reminder of how long the United States takes to regulate chemicals on any shelf.
Apr 07, 2024
Like almost all things chemical in the United States, the recent announcement by the Biden administration that it is banning a major form of asbestos is both a triumph and a disgrace.
The triumph is that after decades of Sisyphean advocacy by public health groups and scientists, chrysotile asbestos, a known carcinogen, is finally facing an assorted set of deadlines for import and use in this nation. In a bit of rhetorical ecstasy, Environmental Protection Agency (EPA) Administrator Michael Regan proclaimed that the federal government “is finally slamming the door on a chemical so dangerous that it has been banned in over 50 countries.”
Even with this move, the United States remains many steps behind other developed nations when it comes to asbestos and chemical safety across the board—thanks to decades of industrial and political suppression of science, the enduring might of industrial lobbyists, and our ever-divided government.
While this administration does deserve credit for acting on asbestos after years of neglect, it is more accurate to describe the White House as politely showing the door to companies who use what is nicknamed “white asbestos.” Two years ago, when the EPA first started proposing rules to get the last uses of asbestos out of current applications, the agency floated a two-year deadline. After heavy lobbying by the chemical industry, which still uses asbestos diaphragms to produce a third of the nation’s chlorine, it now may be up to 12 years before the last chlorine company converts to non-asbestos technology.
The Biden administration is also generally giving a two to five-year phaseout period to companies that use asbestos sheet gaskets to seal pipes. The quickest prohibition is six months against asbestos in automotive brakes and linings, other vehicle friction parts, and oilfield gear. Brenda Mallory, the White House’s chair of its Council on Environmental Quality said, “This action marks a major step to improve chemical safety.”
It should be clear that it is only a step, and therein lies the disgrace. Even with this move, the United States remains many steps behind other developed nations when it comes to asbestos and chemical safety across the board—thanks to decades of industrial and political suppression of science, the enduring might of industrial lobbyists, and our ever-divided government.
Deny, Delay, Disinform
Asbestos makers have known since the 1930s that their products were dangerous and yet they purposely buried that knowledge for decades. They banked on being able to avoid consequences for cancers that took decades to develop in workers who inhaled asbestos fibers. Johns-Manville, the 20th century’s largest asbestos manufacturer, was infamous for a longstanding policy of not telling employees whether asbestosis showed up in their physical examinations.
The entire industry and insurers led by Metropolitan Life copied the same playbook. According to a paper in the International Journal of Occupational and Environmental Health, the final draft of a 1957 industry study deleted the internal finding that asbestos miners with asbestosis were more likely to develop lung cancer than a person without asbestosis. That, in turn successfully, dampened the concern of the American Medical Association.
The leading AMA industrial health editor wrote the authors of the industrial study to say he was “particularly pleased” at the findings of no association of lung cancer to asbestosis. The association’s top consultant for occupational disease went so far as to claim in the prestigious Journal of the American Medical Association that there was “no epidemiological evidence” of increased lung cancer among workers exposed to asbestos.
Even today, asbestos exposure is still tied to 40,000 deaths a year in the United States and 255,000 worldwide.
The legacy of death and disease from disinformation and “disappeared” information haunts us to this day. By the beginning of 2001, according to a 2004 report by the National Bureau of Economic Research, 600,000 people had filed lawsuits over asbestos-related illnesses that had already cost companies $54 billion in legal costs, with an eventual projected total cost of between $200 billion and $265 billion. The NBER said asbestos cases “involve more plaintiffs, more defendants, and higher costs than any other type of personal injury litigation in U.S. history.”
Just two years ago, a Montana jury awarded $36.5 million to a man who worked in the late 1960s at a vermiculite mine and mill in the town of Libby where the mineral was contaminated with asbestos. The operations were owned by W.R. Grace, but the villain, according to the verdict, was the mill’s workers compensation insurer, Maryland Casualty.
The doctors for the insurer did not tell workers that their annual X-rays showed scarring of the lungs. A New York Timesfeature quoted a 1967 memo from a lawyer of the insurer who feared “the extent and severity of the problem.” The mine was closed in 1990, but its asbestos dust has so far been tied to 400 deaths and 2,400 cases of disease. In 2009, for the first time ever, the EPA declared a public health emergency, calling the asbestos contamination in Libby “the worst case of industrial poisoning of a whole community in American history.”
Still a Modern Killer
Even today, asbestos exposure is still tied to 40,000 deaths a year in the United States and 255,000 worldwide. It was not until the 1970s that the United States began banning the crumbly forms of asbestos insulation on boilers and hot water tanks, fireproofing sprays, and wall patching. By then, no one knew how much asbestos the average American was living with. “No one has any kind of numbers,” Sandra Eberle, chemical hazards program manager of the Consumer Product Safety Commission toldThe New York Times in 1984. “We don’t have statistics on how many homes asbestos is in, and we don’t know whether or not it poses a hazard in those homes.”
Numbers continue to be hard to come by. As many other nations began enacting bans over the course of the rest of the 20th century, US efforts stalled. In 1989, under President George H.W. Bush, the EPA attempted to ban most products containing asbestos by 1997. The chemical lobby responded by suing the EPA.
A federal court overturned much of the ban in 1991 on technical grounds. It faulted the EPA for not adequately evaluating potentially less burdensome alternatives to asbestos and not comparing the toxicity of potential alternatives. Although the ruling was primarily concerned with the EPA’s process, Robert Pigg, a top asbestos trade-group executive, seized on it to claim: “We have known for many years that asbestos can be safely and securely bound in today’s products.”
While the EPA says that chrysotile asbestos is the “only known form” of the mineral still being used and imported to the United States, there are several other forms that the current regulation is silent on, leaving the door open for their use.
The result was three decades of mostly federal silence, with untold exposures to workers at plants still using asbestos. In the 2000s, companies such as Georgia Pacific tried to fend off lawsuits over its use of asbestos in its Ready-Mix joint compound in the 1960s and 70s with highly flawed counterfeit research.
In 2022, as the Biden administration launched its effort to ban chrysotile asbestos, ProPublica/National Public Radiointerviewed more than a dozen laborers who worked at a chlorine plant that operated until 2021 in Niagara Falls, New York. The story said “asbestos dust hung in the air, collected on the beams and light fixtures, and built up until it was inches thick. Workers tramped in and out of it all day, often without protective suits or masks, and carried it around on their coveralls and boots.”
One worker said, “We were constantly swimming in this stuff.”
Chemical Industry Wins Compromise
Yet, none other than the U.S. Chamber of Commerce, the nation’s highest-spending lobbying group, opposed the ban. It claimed, like Pigg in 1991, that the mineral “has been utilized safely in the United States for decades.” The American Chemistry Council unleashed a host of scare tactics. It claimed that an asbestos ban was itself a health hazard that could “cause substantial harm” to the nation’s drinking supply and retard “the production of products necessary to achieve our climate and sustainability goals including batteries, windmills, and solar panels.”
The council began pining for a 15-year phase-out period for asbestos. Two years later, the final rule clearly reflects a compromise, with the Biden administration saying it recognizes that converting chlorine facilities to non-asbestos technology “requires extensive construction, additional permits, specialized expertise, and parts for which there are limited suppliers.”
Even if that compromise holds up against lawsuits, the “final” rule is likely far from a final say on asbestos. While the EPA says that chrysotile asbestos is the “only known form” of the mineral still being used and imported to the United States, there are several other forms that the current regulation is silent on, leaving the door open for their use.
The journey has already spanned several generations to get to where we are on asbestos. We should not have to wait so long to deal with the rest of the chemical world.
There is also the unresolved issue of “legacy” asbestos installed in walls, ceilings, and flooring and basements over most of the 20th century. In older school buildings, a 2018 EPA Inspector General report said, “substantial amounts” of asbestos were sprayed for insulation and as fire retardants in school buildings, particularly from 1946 through 1972. A 2017 study by the Centers for Disease Control found that deaths from mesothelioma remained “substantial” and were increasing, likely due to workers maintaining or remediating older buildings with asbestos.
The EPA said it will release an evaluation of other types of asbestos and legacy uses by December. But the piecemeal approach is why advocates such as Linda Reinstein, co-founder of the Asbestos Disease Awareness Organization, have long pushed for more sweeping federal legislation banning all asbestos fibers in products and requiring chlorine companies to convert to non-asbestos technology in two years, as the EPA had originally planned. Such legislation would make asbestos regulation less vulnerable to the highly variable whims of whoever is in the White House. The legislation is named for Reinstein’s late husband Alan, who died from mesothelioma, an aggressive cancer tied to asbestos exposure.
While Reinstein said in an interview that she was “delighted” that the EPA has issued its current rule, she remained highly concerned that there remain loopholes the asbestos-using industry can exploit, especially since she feels that little has changed in its mentality of putting “profits over people.” She emphasized, “This does not ban what you can find on a store shelf.”
A Painfully Long Journey
The protracted journey to any kind of asbestos ban is a sobering reminder of how long the United States takes to regulate chemicals on any shelf, such as menthol in tobacco products, PFAS “forever chemicals” in our water, pesticides in agricultural fields, and even cosmetics in the bathroom cabinet. National Public Radio’s “Living on Earth” recently featured a study from China finding that women undergoing in vitro fertilization who used skin care products were more likely to miscarry than women who did not use skin care products.
Cosmetics have increasingly been tied to endocrine disruption and cancers. The “Living on Earth” feature served as a reminder that here at home, the United States has banned only 11 chemicals in cosmetics, while the European Union has banned more than 1,300. Leonardo Trasande, director of New York University’s center of environmental hazards, told the program, “The more you unravel the onion, the more you realize–whoa, this is a bigger and more complicated story than you might be able to deal with fully in a lifetime.”
The journey has already spanned several generations to get to where we are on asbestos. We should not have to wait so long to deal with the rest of the chemical world. None other than Reinstein said it best: “What we do matters. What we don’t do matters even more.”
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When Will We Hold the Murderous Sociopathic Big Oil Executives to Account?
Today there are families all across the country who are mourning the loss of their loved ones to climate-change-fueled floods, heatstroke, and violent weather as much as I grieved my father’s death at the hands of the asbestos industry executives.
Mar 23, 2024
When my mom got pregnant with me in 1950, my dad, whose lifetime ambition had been to be a history professor, decided to abandon the GI Bill, drop out of college, and go to work in a steel plant in Grand Rapids, Michigan to financially prepare for their new arrival. It was hot, dirty work and the steel came out of the furnace over asbestos-covered rollers, leaving Dad working in a cloud of the stuff.
In 2006, Dad was diagnosed with mesothelioma, an insanely painful and ultimately 100% deadly disease. I tracked down a lawyer who did suits on behalf of asbestos victims, and he showed up to depose Dad on videotape along with more than a dozen asbestos industry lawyers, several of whom were quite verbally abusive to Dad. They barely fit into my parent’s small living room and left my father in tears.
After the lawyers’ fees, I think Mom ended up with around $135,000, which was better than nothing, although the industry lawyers had filed an appeal that forced him back to the hospital for a painful second biopsy to “prove” he had mesothelioma. And then they procrastinated so long that the money didn’t come until after he’d died. These were Trump-style-relentless lawyers representing a murderous industry that had known since the 1930s that their product caused this exact disease.
Every senior executive in the industry for the more-than-70 years between the time they discovered how deadly asbestos was and my Dad’s death knew. And participated in the cover-up.
Just like the executives in the tobacco industry, who have known with certainty that they were peddling death and disease since the 1940s and are today responsible for an estimated half-million American deaths every year, including my younger brother Stan who died of COPD last year.
“Psychopath” is the only word that adequately describes these executives, their decision-making employees, and their hired-gun marketers who make millions knowingly selling poisons.
And now comes the fossil fuel industry, with a whole new crop of psychopathic executives, marketers, and attorneys. Burning their products produces air pollution that causes asthma, cancer, heart disease, and strokes; according to Harvard’s T.H. Chan School of Medicine, an estimated 350,000 Americans die prematurely every year because of this industry’s products.
And that doesn’t scratch the surface of the death and destruction on the horizon, as severe weather driven by global warming from fossil fuel emissions kick in. Such events have cost America over $2 trillion and more than 16,000 lives just since Ronald Reagan began denying the science in 1980. Over 60,000 people died in Europe just last year from a series of severe heatwaves.
A new study from the international NGO Global Witness documents how there could be 11.5 million excess deaths from global warming worldwide by 2100 just based on the emissions of five companies between now and 26 years from now: Shell, BP, TotalEnergies, ExxonMobil, and Chevron.
And now we learned that the industry, which has been publicly praising the Paris Accords around reducing emissions and getting climate change under control, have been lying to us again and instead are — across the board — increasing their production of their toxic products.
This and other analyses of the death and destruction wrought by the fossil fuel industry’s carbon pollution have led a number of legal experts to suggest that now may be the time to lay the foundation for the prosecution of fossil fuel companies and their executives for murder or, at the least, manslaughter.
This would not be a new or novel event.
California utility PG&E was convicted of multiple manslaughter counts and paid $3.5 million in fines when their decision to use money that could have upgraded or buried their power lines — but instead went to millions in bonuses and stock buy-backs for their senior executives — led to the death of 85 people in the Camp Fire that consumed the town of Paradise.
Similarly, when BP’s failure to properly use and maintain their blowout preventers led to 11 deaths (and a massive oil spill) in the Deepwater Horizon disaster, that company pleaded guilty to manslaughter. BP and PG&E ultimately paid billions in fines and compensation.
A new analysis published in the Harvard Environmental Law Review (Vol. 48, No. 1, 2024) titled Climate Homicide: Prosecuting Big Oil For Climate Deaths lays out the case for holding fossil fuel industry executives and their companies accountable for the deaths they are causing as you read these words.
“For decades,” the authors write, “fossil fuel companies (‘FFCs’) have known that their product causes ‘globally catastrophic’ climate change. Rather than warn the public or alter their business models, they waged a multi-decade disinformation campaign to sow doubt and delay regulatory responses.
“Today, as experts continue developing and delivering ever more detailed and precise warnings of climate catastrophe, and vast numbers of people are killed at an accelerating rate by wildfires, floods, droughts, heatwaves, and other climate-related calamities, FFCs continue to expand the production, marketing, and sale of the products they have long understood to cause mass death.
“Activists and journalists have called executives of major oil companies ‘mass murderers,’ lamenting that ‘millions of human beings will die so that they can have private planes and huge mansions,’ and a growing chorus of communities devastated by FFCs’ lethal conduct have begun to demand accountability.”
The authors are blunt, arguing that these executives and their companies are knowingly complicit in the deaths of millions of people in America and around the world, with the numbers starting to explode as we cross multiple climate tipping points.
And still, like the asbestos and tobacco executives of the last century, instead of mitigating the harms of their products, they instead fight every effort at transparency or accountability.
“As additional evidence of FFCs’ knowledge of the lethal risks they were generating surfaces through leaks and court-mandated discovery, obstacles to a successful prosecution [for murder or manslaughter] are falling away. At the same time, with every new wave of climate-related deaths, the justification for prosecution grows.
“Although some of the harmful externalities that FFCs generate may be suitable for tort or regulatory suits, the lethality of FFCs’ conduct, their awareness of the risks they are generating, and their efforts to obscure those risks make criminal prosecution for homicide particularly appropriate.
“Perhaps most importantly, if FFCs continue to fight against all major efforts to reduce the harms they are generating, and if they continue to obstruct or delay state and federal regulation and civil suits designed to reduce the lethal impact of their conduct, then homicide prosecutions may prove necessary to prevent the escalating threat that their lethal conduct poses to millions of potential victims in the United States.”
Indeed, at a conference in Houston this week, Saudi Aramco’s CEO, Amin Nasser, was explicit with a comment that drew loud applause from his oil industry audience:
“We should abandon the fantasy of phasing out oil and gas, and instead invest in them adequately.”
Similarly, Fortune magazine reported last month that the fossil fuel industry is positioning itself to be the largest donor to the Trump campaign, having already given him over $7 million following his recent promises to “drill, baby, drill” and to end all subsidies for electric vehicles and solar or wind power projects.
And, in response to President Biden’s tightening emission standards, the largest fossil fuel lobbying group has proudly announced an “8-figure” advertising campaign called “Lights On” to, as American Petroleum Institute CEO Mike Sommers told CNN, “dismantle policy threats” to the industry.
Commenting on it, The Los Angeles Times editorial board was emphatic:
“Californians should be wise enough to see this messaging for what it is: The behavior of a threatened, greed-driven industry trying to trick us into letting it hold onto its dirty and harmful old ways of doing business.”
This denial of the crisis and doubling down on advertising and more emissions is, of course, no solution.
In past articles here on Hartmann Report, I’ve argued for the US government to nationalize the three largest American fossil fuel companies by purchasing their stock in the marketplace; the total cost would be less than the Trump tax cuts for billionaires, and with new management the companies could help our nation’s transition away from its addiction to oil, coal, and natural gas.
Today there are families all across the country who are mourning the loss of their loved ones to climate-change-fueled floods, heatstroke, and violent weather as much as I grieved my father’s death at the hands of the asbestos industry executives.
They deserve justice, and the industry needs a wake-up call like the asbestos industry got in the late 1990s, leading to a wave of bankruptcies.
Holding murderous executives and their rogue companies bent on profiting from unnecessary death and destruction is imperative. As New Jersey Attorney General Matthew Platkin noted a few months ago:
“Based on their own research, these companies understood decades ago that their products were causing climate change and would have devastating environmental impacts down the road.
“They went to great lengths to hide the truth and mislead the people of New Jersey and the world. In short, these companies put their profits ahead of our safety. It’s long overdue that the facts be aired in a New Jersey court and the perpetrators of the disinformation campaign pay for the harms they’ve caused.”
The men (they were almost certainly all men) who made the intentional decision to murder my father for profit are long dead; the men and women who today are plotting to render much of our beautiful planet uninhabitable are very much with us.
It’s beyond time to hold them accountable.
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