Under the guise of scientific inquiry and worker safety, a taxpayer funded effort is helping corporate America avoid legal responsibility for poisoning hundreds of thousands of Americans with asbestos. The National Institute for Occupational Safety and Health has proposed a roadmap that purportedly seeks to minimize the potential for asbestos disease.[1] In fact, the roadmap and its vast melding of tax dollars, federal bureaucracy, and industry cronies seek to protect asbestos defendants from valid claims by mesothelioma victims by showing that chrysotile asbestos is harmless, in contravention of almost one hundred years of clinical research.

The only two significant remaining issues for asbestos manufacturers after more than a century of wantonly poisoning millions—and earning billions—are defending mesothelioma lawsuits and defeating a ban on asbestos. The reasons are simple: asbestos lawsuits have bankrupted more than 85 companies since 1976, with more sure to follow,[2] and asbestos is still a profitable poison to sell in this country.[3]

These are not your grandfather’s bankruptcies, however, where bankruptcy meant that the company got liquidated, laid off all its employees, and wrecked the local economy.[4] The asbestos bankruptcy sham isn’t really a bankruptcy at all. It’s a legal sleight-of-hand that spins off the corporation’s legal liability by creating a trust fund to “compensate” victims. The sick and dying victims are then forced to hash it out with corporate lawyers, trust bureaucrats, and insurance companies, while being deprived of getting justice via direct lawsuits against the poisoner. The original mammoth bankrupt, Johns-Manville, has emerged from faux bankruptcy and today enjoys over $2.5 billion in annual sales.[5] An analysis of asbestos bankruptcies shows that the spin-off process has made them stronger, leaner, and profitable.[6] For the mesothelioma victims poisoned by these companies’ deliberate use of asbestos, the outcome has been less rosy. Victims of Johns-Manville who thought that they would be compensated soon found that the trust fund was tottering on the brink of bankruptcy after a few short years—in the old-fashioned sense, of course—so that they received only a pittance of the pittance they’d originally been promised.[7]

Not-so-covert Operation

The NIOSH roadmap is a sharp arrow pointed squarely at the heart of mesothelioma victims. Asbestos defendants know that there is no asbestos litigation crisis. There is no logjam in the courts, courts are not buckling under the weight of the asbestos caseload, and the peak of cases has passed.[8] Since faux-bankruptcies allow companies to quickly spin off their asbestos liabilities, and since the only detailed review of asbestos litigation as it relates to the supposed litigation crisis decisively concludes that there is none,[9] the only two issues left on the table are mesothelioma lawsuits and the ability to keep peddling the poison for a profit.

Mesothelioma litigation is one of the only avenues to the courthouse left for asbestos victims, and to get there the claimant usually has to die, since mesothelioma has the poorest of prognoses. But once in court, the victim has a good chance of getting some form of justice in the few states that haven’t shut the courthouse door to asbestos victims. Con Edison and Long Island Lighting Co. in New York got tagged with a $41 million verdict[10] a few years back, and defendants live in terror of the eight-digit judgments that outraged juries hand down in select jurisdictions.

When a patient with mesothelioma worked in the right job and got exposed to asbestos from the right products, he has a great case because the only cause of mesothelioma is asbestos. Unfortunately, the price for his great case is typically a slow and painful death. Asbestos manufacturers that have not yet sought faux-bankruptcy protection have therefore made it their single biggest priority to prove that even though asbestos indisputably causes mesothelioma, “their” type of asbestos does not.

Enter NIOSH and the roadmap.

Truth or Consequence?

Science has been political since Galileo recanted to the Inquisitors-General. But from the time the great astronomer retracted his heliocentric ideas in 1633, the general trend has been to insist on greater objectivity and less politics in science. Federal agencies like the EPA and NIOSH have historically been regarded as purveyors of reasonably de-politicized scientific inquiry. The Bush administration, however, has fast-tracked governmental science right back to the 17^th Century.

Industry has seized on a number of administration initiatives as an indication that the time is ripe to churn out some old-fashioned junk science on the issue of how much of what kind of asbestos causes what kind of cancer how often in whom. The administration has favored junk science initiatives that cover a wide range of health and science related issues, and that have encouraged industry operatives with a wink and a nod about the new direction of science in government.

With respect to global warming, the administration’s strategy has been to question it at every turn.[11] The core policy of the administration has been to increase fossil fuel consumption while playing semantic games that exacerbate the problem,[12] if there is a problem, which they deny. Even when the EPA endorsed the idea that human activities such as oil refining, power plants, and automobile emissions are important causes of global warming, Bush dismissed them as “bureaucrats.”[13] Stem cell research, another province of hard science, has met with great resistance from the President. In 2001 he limited federal funding for embryonic stem cell research to cell lines already in existence, but the twenty lines still in use have become genetically degraded and are now ill-suited for research.[14] Bush’s non-scientific decision flew in the face of the National Institutes of Health, who have concluded that research on human embryonic stem cells offers great promise for curing Parkinson’s disease, heart disease, Alzheimer’s disease, spinal cord injury, and diabetes.[15] An equally blind and cynical eye was turned to mercury emissions,[16] tobacco,[17] air pollution,[18] and science in general, as the President declared his ideas about intelligent design on a scientific par with those of Charles Darwin by insisting they be taught in the classroom.[19] Asbestos industry operatives have been keenly watching the presidency for cues as they ramp up their assault on well-established notions of the asbestos toxicity in the waning days of the Bush Administration.

Silence of the Dead

Junk science and suppression of data are old friends to the asbestos industry. Chronicling the lies and cover-ups by asbestos defendants would occupy thousands of pages, and has been reviewed in depth by Castleman,[20] among others. Legal discovery in litigation has been responsible for uncovering much of the hard proof that of wrongdoing by the asbestos defendants. A brief recap, however, is appropriate because what is happening in the 2007 NIOSH roadmap bears uncanny resemblance to what happened decades ago.

In the 1920’s the medical community recognized that the fibrotic lung condition later known as asbestosis was caused by, of all things, exposure to asbestos.[21] By 1933, hired gun scientist, physician, and public health expert Anthony Lanza told asbestos company doctors that he didn’t think the hazards of asbestos warranted warning labels or posters in view of the “extraordinary” legal repercussions of telling the truth.[22] The asbestos industry, with its lawyers, insurers, and hired scientists, laid the foundation in the early 30’s for future concerted action to conceal research findings about asbestos and cancer.[23] In addition to doctoring scientific studies, publishing redacted science in peer-reviewed journals, and having asbestos industry business managers review and edit scientific research,[24] the history of America’s worst public health disaster has been largely caused by industry fraud.

Past behavior is always a useful referent for future performance. As NIOSH embarks on its industry-approved roadmap, it is helpful to remember that the strategy for asbestos companies has always centered on delay. In 1950, asbestos corporate officials had already committed to a firm policy of “epidemiology” and “causation,” the very two issues still being “debated” more than half a century later. In recommending an epidemiologic approach, the medical officer for Johns-Manville also opined that, “We would be wise to wait until we have proof of no causal relationship between asbestosis and pulmonary cancer…”[25]

It’s 2007, and the draft language from NIOSH’s roadmap indicates that they’re still waiting: “Yet, as we enter the 21^st Century, many questions and areas of scientific uncertainty remain…Most importantly, the Roadmap outlines a research program that will provide answers to current scientific questions, reduce scientific uncertainties, and provide a sound scientific foundation for future policy development.”[26]

Johns-Manville couldn’t have said it better.

Endless Doubt

Asbestos defendants have a simple strategy for defeating valid mesothelioma claims in court: raise the level of uncertainty about science in order to keep it from the jury. Judges have been reluctant to keep out evidence where reasonable scientists disagree. So the asbestos defendants have chosen to raise the level of uncertainty about science in order to delay the use of knowledge about chrysotile toxicity for purposes of OSHA decision-making, and to limit public awareness of an issue affecting public or environmental health.

The backbone of the strategy to bring NIOSH to its knees vis-à-vis asbestos science begins with the insidious Information Quality Act, the brainchild of anti-regulation, pro-business lobbyist, trade council hack, voyeur, and self-confessed “dirty old man” Jim Tozzi.[27] The American Chamber of Commerce claimed that the law would “have a revolutionary impact on the regulatory process.”[28] Public interest groups claim that it has become a tool that special interest groups can use to avoid regulation forever.[29] Both have been proven correct.

With regard to asbestos science the jury is already in—or out and not coming back, if you’re a mesothelioma victim—on whether the act exists to promote quality data or exclude good science from agency regulations. On August 19, 2003, the asbestos defense firm Morgan, Lewis and Bockius[30] filed a petition with the EPA challenging a 1986 publication, “Guidance for Preventing Asbestos Disease among Auto Mechanics.”[31] Morgan Lewis claimed that the publication, known as EPA’s Gold Book, flunked the requirements of the Information Quality Act. Pursuant to the act, they claimed the data was inadequate, inappropriate, outdated, and in conflict with subsequent studies. Then they launched an all-out attack on the Gold Book claiming that verification of the publications origins, preparations, funding, review, and approval of the booklet are unknown.

Why all this fuss about an EPA publication that says in plain language:

1. Asbestos disease should be prevented among auto mechanics

2. Asbestos causes disease

3. No safe exposure levels are known

4. Asbestos is easy to breathe and ingest

5. Proper work practices will reduce exposure

The fuss, of course, is that the automotive industry is terrified of mesothelioma lawsuits from auto mechanics. Brakes and clutches contain chrysotile asbestos. If chrysotile is dangerous enough for the government to warn, then the companies may ultimately be liable for their failure to warn—especially since they knew of the danger. The only solution, as they see it, is to prove that it’s not dangerous, or that the science is so complex and uncertain that they couldn’t have known.

Morgan Lewis’s challenge framed the innocuous publication as one intended to change the work-behavior practices of an entire industry and, because it relied on information from scientific sources, as one that must meet the rigorous standard for “influential information.” The key admission as to what was really driving their concern over the publication, however, was Morgan Lewis’s note that during litigation the Gold Book is routinely proffered as evidence of EPA’s current position and thinking on whether asbestos-containing friction products are dangerous to users.[32] Morgan Lewis cared zero about the quality of the data, and everything about its admissibility in court.

EPA caved in, approving most of the petition and promising to put out a new brochure, which it did.[33] OSHA then took over, as it came to do the bidding of the asbestos defendants and their lawyers. Unlike the Gold Book, which begins with the phrase “preventing asbestos disease among auto mechanics,” OSHA’s new document begins with a legal disclaimer: “[this bulletin] is not a standard or regulation, and it creates no new legal obligations.” The Gold Book talks about latency, asbestosis, mesothelioma, and lung cancer—evils caused by asbestos beyond any shred of scientific doubt, and the book instructs “there is no known level of exposure to asbestos below which health effects do not occur.” In contrast, OSHA’s 2006 bulletin includes exactly 27 words about health effects of asbestos. The document assures readers that asbestos use is declining, that newer cars may not use such products, and that nothing in the bulletin is to be taken as a standard, requirement, or regulation. It’s more like free advice, worth pretty much what it costs.

And what about the scientific quality of the government’s new booklet under the Information Quality Act? The original Gold Book was documented with 37 footnotes. The new OSHA brochure? One. 

Tilting the Panel

The NIOSH draft roadmap, developed with the help of NIOSH scientists and engineers with combined experience in toxicology, epidemiology, industrial hygiene, analytical chemistry, and other disciplines, is forty-seven pages long. It includes a glossary, extensive footnotes, graphs, and even a list of acronyms. But nowhere in the document does it provide the long list of names of the scientists, engineers, and others who supposedly developed the report.

Nor is this a harmless oversight. The roadmap’s peer review panel is carefully composed of three unabashed “chrysotile doesn’t cause meso” members, one asbestos victim advocate, and five members who have expertise in various areas. None is an advocate for the proven scientific proposition that chrysotile causes mesothelioma. Ann G. Wylie, mineralogist at the University of Maryland, most recently worked as the principal investigator for a $508,000 grant funded by GM, Chrysler-Daimler, and Ford,[34] in case anyone’s wondering where she stands on chrysotile asbestos as it relates to automotive brakes. Wylie also is an unabashed proponent of the idea that exposure limits need to be revised via reclassification of asbestos fibers[35]—and she’s not suggesting downward, either. This reclassification—or research, as it’s called in the roadmap—is precisely what NIOSH has been tasked by industry to do: allow lots of exposure to chrysotile.

Brooke Mossman from the University of Vermont is another rabid asbestos apologist on the peer review panel. In addition to a Scientific American article where she reminds readers that chrysotile is “safer” than other forms of asbestos, and that other countries find asbestos of great utility,[36] Mossman defends one of her papers by quoting an epidemiologist who suggests that chrysotile may not cause mesothelioma at all.[37] The real aim of the roadmap is to find a path out of the last century of medical research, and find a way back to the days when Dr. Lanza could authoritatively tell fellow physicians that there really was no need for warnings about asbestos. Unlike Lanza, who was at least honest enough to admit that the reason for suppressing scientific facts was fear of litigation, the new crop of NIOSH hacks are hell-bent on simply denying the science.

In case the panel’s hue in terms of chrysotile toxicity weren’t sufficiently in favor of asbestos defendants, Morton Lippman also came along for the ride. Lippman believes that any fiber less than 5µ (happens to include most chrysotile fibers) is harmless. When the Carpenter Report clearly explained that even though short fibers might be less carcinogenic than long fibers, the fact that short fibers greatly outnumbered long fibers in Lower Manhattan after 9/11 and thus might cause more disease than long ones, Lippman accused Carpenter of “fear-mongering” in raising the short fiber issue.[38]

Since the NIOSH roadmap covers an extraordinary scope—“a research program that will provide answers to the current scientific questions, reduce scientific uncertainties, and provide a sound scientific foundation for future policy development”—it is remarkable that three pure pro-chrysotile reviewers would be on the peer review panel of only nine people, unless of course the real purpose of the roadmap was not to provide answers to current scientific questions but to chart a course for GM, Ford, and Chrysler-Daimler so that they may continue using chrysotile in their brakes and clutches, while helping chrysotile defendants avoid liability in court.

So How Dangerous IS Chrysotile?

Given the 3,000-4,000 Americans who die every year from mesothelioma, and have been doing so for decades, that the question is being asked at all is an offense against humanity. While asbestos defendants in this country dredge up the old arguments about the harmlessness of chrysotile, the rest of the world is working overtime to ban it. As of 2007, chrysotile has been banned by Iceland, Norway, Denmark, Sweden, Switzerland, the Netherlands, Finland, Italy, Germany, Kuwait, France, Poland, Monaco, Belgium, Saudi Arabia, Lithuania, the United Kingdom, Ireland, Brazil, Latvia, Chile, Argentina, Spain, Luxembourg, Uruguay, Australia, Honduras, South Africa, Japan, Cyprus, the Czech Republic, Estonia, Greece, Hungary, Lithuania, Malta, Portugal and Slovakia, Egypt, Jordan, Croatia, New Caledonia, Gabon, and the Seychelles.[39]

What do they know that we don’t? Nothing.

The World Health Organization classifies chrysotile as a carcinogen, period.[40] The International Agency for Research on Cancer is emphatic that it is not possible to assess whether there is an exposure level below which an increased risk of cancer will not occur.[41] The IARC classifies chrysotile as a carcinogen, and clearly states that although other types of asbestos create a higher risk for mesothelioma, some cases of mesothelioma do occur as a result of exposure to chrysotile.[42]

While asbestos defendants gleefully seize on the fact that chrysotile isn’t the most potent cause of mesothelioma, they forget that OSHA and EPA’s mandates aren’t only to ban the most potent causes of mesothelioma, but to make the workplace safer. Chrysotile is a carcinogen, case closed. From an occupational safety regulatory standpoint, what difference does it make to NIOSH whether mechanics are more likely to get mesothelioma or lung cancer? The substance is clearly dangerous, so get rid of it.

The answer, of course, is that the NIOSH roadmap is not set up to get asbestos carcinogens out of the workplace—everyone, even its most rabid apologists, agrees that chrysotile is a carcinogen. The NIOSH roadmap is, rather, set up to prove that chrysotile doesn’t cause mesothelioma. A greater perversion of a workplace safety research institute could hardly be imagined.

However at odds with public health or occupational safety, the real NIOSH inquiry is “Does this otherwise lethal carcinogen also cause mesothelioma?” The answer is also “yes.” A 25-year longitudinal study in China conducted by Chinese, Japanese, and American researchers showed that chrysotile alone causes mesothelioma. [43] This debunks the industry claim that only non-chrysotile forms of asbestos are to blame, and it confirms what doctors have been seeing for a century: even if chrysotile is less deadly, when the concentrations are high enough it causes lots and lots of mesothelioma.

NIOSH’s mandate is to protect workers. Abating asbestos and strictly enforcing dust suppression laws saves lives. Supporting the Ban Asbestos Act and putting teeth into workplace safety regulations fit neatly with OSHA’s mission. Empanelling junk scientists and churning out draft roadmaps fit the mission of asbestos defendants seeking a silver bullet to slay products liability litigation and to let them continue hawking their deadly wares.

Can We Please Go Home?

There is no compelling scientific, regulatory, medical, or policy reason to invest public money in an effort to establish that chrysotile doesn’t cause mesothelioma. Such research seeks to exculpate the fiber types that were used in 95% of all commercial and industrial applications, usage levels that fit neatly with the thousands of mesothelioma deaths every year in this country, and fit even more neatly with the Chinese study that shows how more exposure will lead to more mesothelioma.

No research will ever exculpate asbestos defendants’ products as pure chrysotile, because reasonable scientists differ over whether pure chrysotile even exists.[44] In addition, most of the asbestos used through the 1970’s, which is the source of the current mesothelioma scourge, was contaminated with amphibole/tremolite fibers. Sixty years ago asbestos manufacturers tried to escape blame for the public health crisis by pointing the finger at South African blue asbestos. Now they're doing it again, except this time it’s with taxpayer dollars and the weight of a federal agency.

NIOSH should stop wasting resources on its sham roadmap. NIOSH should start investing money in finding a cure for mesothelioma. NIOSH should use its resources to come up with scientific findings that will help OSHA make the workplace safer by banning asbestos products. It really is that simple.