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The watchdogs take a nap

An excerpt \nfrom Andrea Peacock’s \njust-published Libby, Montana: Asbestos and \nthe Deadly Silence of an American Corporation

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Marc Racicot is on his home turf in Libby’s Memorial Gymnasium. The fifty-three-year-old governor grew up in this town where he is remembered as a basketball star, the coach’s son who led his team to its first and only state championship in 1966. His family’s roots were planted in the Montana Territory back in the 1860s; his grandfather struck out for Libby in 1917, where he worked as a logging camp cook for the J. Neils Lumber Company. Racicot’s wholesome background is part of a well-crafted image that made him the state’s most powerful political figure of the 1990s and brought him to the attention of presidential candidate George W. Bush and, ultimately, to a position at the head of the Republican National Committee. But one night just before Christmas 1999, the thin, hatchet-faced Republican politician returned to the old gym to face a less-than-friendly hometown crowd, more than 200 former neighbors looking for answers about the sickness that had hit their community like a slam-dunk from out of nowhere.

Racicot had a lot to answer for. As a Libby native, he must have known something of the miners’ plight. And as a state officeholder—first winning the attorney general’s seat in 1988, then serving two terms as governor—the star ballplayer missed his chance to be a champion for his people. Racicot knew there were lawsuits, knew there was controversy over returning Grace’s reclamation bond, but despite all his years in Libby—his small-town biography used to great political advantage—the governor maintains he had no idea there was anything amiss with the mine. At least that’s what he told those journalists who asked him. I am incredulous and put the question to him a little differently: Did he personally know anyone who was sick? Who had died? “I didn’t know until the most recent reports,” he said, pausing as if the question recalled faces and memories. “Some people I knew from when I grew up here, I know from media reports have suffered and died. I haven’t spoken with the family members.”

Then he slips back into politician mode. “I do know it’s a matter of grave and serious concern. It’s particularly piercing and searing to know people who’ve had these challenges visited upon them.” Racicot’s concern for his hometown rings hollow to many of the victims here, but the man himself can hardly be blamed, single-handedly, for the circumstances that brought us all to the gym tonight, because Montana was built on mining, and the industry’s agenda dictated events under the copper-domed capitol in Helena nearly to the end of the 20th century. Beginning in the late 1800s, Montana’s blood ran gold, silver and copper through veins that fed the bank accounts of East Coast capitalists. The mightiest of these were the copper barons, Marcus Daly and William Clark, prospectors who began by working other men’s claims but built rival mining empires and fought each other vicariously using the state’s unions, politicians and voters as their pawns. Eventually, Daly’s Anaconda Company emerged as the victor. As historian Michael Malone puts it, “To many observers, both inside and outside the state, Montana appeared to be the classic example of a ‘one-company state,’ a commonwealth where one corporation ruled.”

From the start, the state’s mining industry was singled out for special treatment. Montana’s original constitution, ratified in 1889, spelled out a liberal policy under which mining companies’ taxes were assessed solely on their largely-imagined net proceeds. According to a legislative committee report, the vermiculite industry—of which Grace was the only substantial member—during the five years from 1972 to 1976 claimed only .0046 percent of its gross proceeds as taxable income. The mine managers, according to one local politician, fought to reduce that tax burden even further.

Paula Darko, a home economics teacher who served in the Legislature in the early 1980s, recalls being bullied to support a measure allowing even more deductions for the company.

“Earl Lovick and Bill McCaig, who was the manager up there, they came to the Legislature and said Paula, this bill helps us with our taxes. We’re taxed on net proceeds and some of the exemptions we want to have aren’t legal, so we want to change the law so that we can get some more deductions allowed on our net proceeds…’

“And I said, ‘Well, that sounds reasonable,’ so then I went ahead and signed on the bill…And they’re over there wining and dining me, and I got to thinking you know, if we lower their taxes, it means a loss to schools, it means a loss to our tax base. And it was substantial, it was a lot of money.”

Darko withdrew her support and the measure failed. “I got up on the floor of the House and said, ‘I can’t support this bill, I’m taking my name off this bill. Our schools will lose money, and who is able to pay this tax bill? W.R. Grace or the people of my community?’ And the bill died. [McCaig] called me out in the hall and he called me every name, he could hardly speak. So then, I became Dumb Darko. And his vendetta was to get me defeated in the next election. I mean, he did everything he could. My name at the Chamber of Commerce was Dumb Darko.” Stung by McCaig’s spite, Darko says she was happy to have served only one term. “People in this town, I don’t know. They’re just mean…I’ve spent too much of my life and too much of my good health trying to help people who didn’t appreciate it. Call you up in the middle of the night and tell you off. I got defeated in the election the last time I ran and I think the Lord was looking out for me because I don’t know that I could have done it any more. It was just getting to be too nasty.” She intends to leave Libby as soon as she retires, moving back to her hometown of Great Falls along the spectacular big open of the Rocky Mountain Front.

Libby was far removed both geographically and politically from those early battles that turned Butte into a combat zone. The town and its industries were of one mind.

They were, so far as the citizens were concerned, all on the same team. There weren’t even any strikes in Libby during labor’s heyday in the rest of the state. But both Zonolite and the Grace Corporation benefited from King Copper’s reign. State laws favored The Company, and in the case of Libby it meant that Grace could use the non-retroactive 1959 Occupational Disease Act as a shield against responsibility for those first sick workers, by claiming they’d been made ill prior to the passage of the law. State inspectors wielded little power; even as Benjamin Wake spoke in terms of “maximum allowable concentrations,” he lamented that he could do little more than complain about the dust in Libby. In a 1964 letter to the union, Wake wrote, “enforcement provisions of the Industrial Hygiene Act of 1939 are very poor. The [attorney general’s] office has not strengthened the Act and we can only use certain portions of the Act to achieve compliance with recommendations.” And Wake’s reports were marked confidential not because Zonolite or Grace officials pressured him to do so; it was simply the norm. State law required him only to inform the company of his findings.

Wake’s final correspondence with Grace is dated June 23, 1972, in which he gives a brief nod of approval to the company’s plans to build a new mill at the mine, replacing the dry mill he’d been complaining about for the past 16 years. After Wake’s departure, and the construction of the new mill, the health department’s communications with Grace take on a decidedly accommodating tone. In the state’s first inspection of the new facilities in 1974, engineer Robert Hill finds that one-third of the samples he takes from the new mill and 11 percent of those from the new screening plant still exceed existing limits for asbestos, and half of the rest break new levels being proposed by the fledging federal EPA. Hill, nonetheless, is pleased with these results. Unlike Wake, he makes no specific recommendations for bringing Grace into compliance, but leaves it up to the company’s discretion: “In summary these samples indicate that the new process and equipment is achieving good control of airborne asbestos in most areas. They also point out several areas where improvements could be made and significant long-term benefits achieved...

“I sincerely appreciated the cooperation and assistance provided by you and your staff during this survey. While this survey was made at an inopportune time for you, we are now satisfied that the new process and plant has significantly improved working conditions. At some time in the future, after operation of the new plant has stabilized, I would like to collect a series of personal samples to verify that employee exposures to asbestos remain acceptable.”

It’s telling of Montana’s attitude toward mining regulations that a state engineer finds it “acceptable” for Grace to consistently overexpose its workers to asbestos. But at least in 1974 the state was making an effort to keep track of the doings up in Libby. After Hill’s report, it would be seven years before another state inspector traveled to Libby. Pat Driscoll, a Montana Tech grad with a degree in environmental engineering, pulled the job of inspecting the mine for 1981 to 1987 for the Department of Health, and his authority was narrow. His job was to enforce the state’s air quality standards, which meant the air the public was breathing. The miners’ health was an occupational issue, and out of his reach. “I was well aware that that mine, in processing vermiculite, had a lot of tremolite asbestos associated with it, and that at least at that point in time there had been a significant occupational exposure to asbestos,” he admits. “Neither our agency, nor EPA for that matter, has occupational regulatory authority. I don’t say that as a cop-out or to lay the blame. That’s just strictly our only authority: ambient air, that is, where the public has access. That’s where the standards apply.”

During Driscoll’s tenure as inspector, the state continued its accommodating tone. On January 31, 1984, Department of Health supervisor Bob Raish wrote Earl Lovick a month ahead of the state’s visit to give the company a heads up, letting them know when the state would be sending inspectors later to collect samples of particulate matter in the air. Grace responded by sending its own samples to the agency before the state guys could get up there. Driscoll says he did inspect the mine later that year in June, but the subject of asbestos never came up. Driscoll’s 1985 and ’87 inspections were hampered by the fact that the mill was closed down the days he was there to take samples. Driscoll says that in 1987 he asked the company to share their own data on asbestos emissions. The company’s environmental specialist said he’d have to check with corporate headquarters before releasing that kind of information. It was never forthcoming. “My request for monitoring data during my site inspection on September 17, 1987 was specific to their in-plant asbestos testing for occupational exposure which did not fall within our regulatory purview,” Driscoll wrote me to clarify the situation. “I do know that I never received any data from Mr. Jacobs but I do not recall if he ever got back to me specifically stating a corporate decision on providing the data. Later in 1987 or early 1988, my job duties were changed and inspection responsibilities at the site were assigned to another inspector. In reviewing the files, it does not appear that any occupational monitoring data was ever submitted by the company.”

And finally, the state had—and still has—no regulations specific to ambient asbestos in the air. “It’s like saying people shouldn’t drive fast, but never setting a speed limit. What does that really mean and how do you really regulate it?” Driscoll says, referring to Montana’s brief flirtation with an undefined statewide “reasonable and prudent” speed limit. “That’s where it’s still at: There still is no ambient air quality standard for asbestos. So it would have been hard even if we had tried to pursue it as a public health issue then, it would have been difficult to say how much is too much.”

Driscoll says he finds it curious that so many people now say they knew nothing about the asbestos problems in Libby. He recalls extensive discussions of the matter as part of his course work at Montana Tech. “There was lots of discussion about the asbestos issues in general, but specifically at that mine. That’s one of the things that’s always confused me a little about now, the perception that no one knew of this issue when it was certainly discussed at length.”

Driscoll is partly right; people at all levels of government knew there was an asbestos problem in Libby. But only Grace saw the big picture. The situation was a little like a crooked game of cards: Grace had marked the deck and hidden a few aces under the table. Only those in management knew all the facts. Grace had the X-rays and company officials chronicled their death-watch in a series of macabre internal memos, noting as each man’s health declined on the grainy black and white film. Local doctors were at the company’s beck and call, while outside health officials had to beg for scraps of data that were never forthcoming. Grace had read the 1977 hamster study and knew its results boded ill not just for the health of anyone who came in contact with their tremolite fiber, but also for the mine’s financial future. By the time Driscoll made his first inspection, Grace had amassed a collection of death certificates, and could call upon two decades worth of detailed asbestos fiber counts. But they weren’t sharing.

Adding to the confusion, each agency played by a different set of rules: Congress charged the Occupational Health and Safety Administration with setting asbestos standards, but enforcement was confined to the federal Bureau of Mines and its successors. The EPA and state could assert authority if there was a general health hazard, but couldn’t set foot past that boundary. The resulting regulatory scheme was a disjointed mess.

Meanwhile, two thousand miles to the east, a health crisis erupted at a Marysville, Ohio, company when four of its employees were diagnosed with bloody pleural effusions. O.M. Scott and Sons—now called the Scotts Company—makes some of the nation’s most popular lawn and garden chemicals: Turf Builder, Miracle Gro, Roundup. In 1978, the four men, workers at Scott, had somehow developed holes in the delicate membranes around their lungs and Scott officials were rightfully concerned. It was there in Marysville, Libby’s EPA team leader Paul Peronard tells me, that the federal regulatory system worked. Had the Grace Corporation not stalled, the system might have worked in Libby, too.

The way U.S. law is set up, federal agencies rely on the candor of the industries they regulate both for setting health standards and for ferreting out problems. When the Scotts Company came down with four sick workers, its officials contacted the feds immediately. “[S]ome information relating to one of our chemical fertilizer plants has come to the attention of Scott which may or may not be reportable under the various statutes administered by your respective agencies,” the Scotts attorney wrote to the EPA and federal Occupational Safety and Health Administration. “We have resolved any doubt on this question by this letter in an effort to fully advise you and seek your cooperation in dealing with the matter.”

The attorney goes on to report that Scotts could not find any material linking bloody pleural effusions to asbestos exposure, and added that the people in its employ were exposed to levels of asbestos within the law. “In summary, the situation present is a perplexing problem. There is no medical evidence or literature indicating these four cases are due to occupational exposures in the Scott Plant. Yet, the fact remains a cluster of four cases of this type would not be expected to be found in a much larger population than Scott’s 500-600 workforce. Adding to this uncertainty is the fact that this condition has apparently arisen several years after plant exposure, but not within the expected timing of asbestos-like problems.”

It’s become a familiar chorus over the last several years, this idea that because a company’s asbestos levels were within the limits set by the federal government, there shouldn’t be any sick workers. And yet, here they are: the irrefutable proof of gravestones and oxygen tanks. The limits were wrong.

At Scotts, officials from OSHA came in and did some testing, and found that the company’s health problems were much more extensive than Scotts realized: There were in fact nearly three dozen workers with some kind of pleural disease, out of 125 tested. But so far as cause, OSHA shrugged its shoulders. So Scotts officials hired scientists from the University of Cincinnati to look at the problem. Jim Lockey was just a grad student in those days, looking for a thesis topic. He signed onto the project with his professor, Dr. Stuart Brooks, and their research eventually linked the illnesses to asbestos in the vermiculite Scotts used as an inert carrier for its chemicals.

The connection was not immediately obvious, Lockey says, because all kinds of things cause bloody pleural effusions: “There could have been an infectious cause, there could have been a viral cause, something like that. Chest trauma, you fracture a rib, you bleed into your chest. Certain types of pneumonia, cancer can cause bloody pleural effusions.” Once those were ruled out, the doctors took a look at the plant’s industrial hygiene data, which included the information that the sacks of vermiculite from Libby were contaminated with asbestos. “That’s not something that we see a lot of with asbestos exposure—it’s an uncommon manifestation of asbestosis,” he says. “If you have somebody who’s had an occupational exposure to asbestos and they have a bloody pleural effusion, and you’ve ruled out all those other things I’ve just talked about, then you resided into the category where it’s most likely caused by asbestos exposure.

“And then we said we think this is probably rela-ted to asbestos, I think that’s when the bells went off that there is something going on here,” Lockey says. The Cincinnati scientists recommended that Scotts switch ore sources, and the company did so in 1980. The company had been getting half their vermiculite from Libby, and half from a mine in South Africa. After Lockey’s study, the company began using ore from Grace’s other vermiculite mine in South Carolina. Later, Lockey compared the asbestiforms from all three mines, as well as one in Virginia, which together comprised 90 percent of the world’s vermiculite source. Libby’s ore, the scientists conclu-ded, appeared to be the most dangerous and the single difference was the “aspect ratio” of each fiber’s length and width; or in other words, Libby’s fibers are long and narrow, spears that dig into lung tissue, while asbestos from the other mines tended to the geometric equivalent of obesity.

As the revelations from the Scotts Company made the rounds in federal circles, suddenly everyone was interested in Libby. The National Institute of Occupational Health was the first agency to approach Grace after the news broke, and expressed interest in doing a study of Libby workers. Company officials met twice with NIOSH representatives in November 1980. At the first meetings, Grace officials provided NIOSH agents only the most vague data about their operations. Undeterred, the NIOSH people sat down with Grace officials a few weeks later and pushed their position more forcefully, informing the company that they would do a comprehensive epidemiological study of Libby’s miners and that this study would take place in 1981.

First, Grace officials tried to defuse the situation by clouding the issue of the company’s culpability for the Scott situation. According to a corporate memo summarizing the talk, they told the NIOSH representatives, “this study could create a lot of loose talk with serious implications and have a deleterious, unjustified and pointless impact on Grace’s vermiculite business. [Harry] Borgstedt stated a viral infection was a more likely Scott explanation than vermiculite. [Safety director Harry] Eschenbach stated that chemicals handled and applied at Scott were further suspects.”

The NIOSH people, however, were well-prepared to be stalled. When the agency’s epidemiologist asked Grace for the company’s data on each employee’s exposure history, Grace officials equivocated: “When we indicated this would be difficult and subjective, she [the epidemiologist] produced a 1968/69 Earl Lovick summary which did this.” The meeting was a stalemate and ended rather abruptly.

Dr. John Dement, NIOSH team leader on the project, recalls that Grace had no interest in cooperating. “They were dragging their feet,” he says. “They had a strategy that they had pretty well thought through. They were resistant to the study, and that’s pretty well summed up in the memos, which I saw many years later.”

The memos Dement refers to are straightforward in their intent. In one, a Grace official has written in the margins that Dement is “wise, nasty...” Another memo penned by Grace executive Robert Locke outlines the company’s strategy. He lists their options as:

a) Obstruct and block; possibly even contesting in the courts. As I understand it, we’d lose and this is not exactly the image we try to project.

b) Be slow, review things extensively and contribute to delay. This might not be bad policy generally and it is possible that the new Administration’s policies will make NIOSH more selective in how scarce staff resources are allocated after January 20, 1981.

c) Publish a ‘pre-emptive epidemiological study.’ This could attenuate the resume-enhancing potential for NIOSH study personnel. This could also be a checkpoint for a subsequent NIOSH study when it is released.

d) Cooperate fully. This agency and its personnel have not always acted with high levels of professionalism on past studies. This option would save NIOSH time and effort, make their study more comprehensive and possibly rule out some inaccuracies. It would not necessarily make NIOSH’s conclusions any more responsible.

e) Actively go upstream in NIOSH to personally repeat the same arguments, the first time immediately after receipt of the protocol.

f) Actively seek to turn off the sources of the pressure for the study by personally repeating the same arguments. However, the sources may have supplementary reasons not fully shared by NIOSH.

g) Attempt to apply influence via congressmen, senators, lobbyists or others to get it turned off. This might result in delay without turning it off. However, it is not necessarily successful, can backfire and to be effective must be developed over long periods of time due to the trust required.”

When Locke refers to the likelihood that scarce NIOSH staff resources will be re-allocated after January 21, 1981, there’s more than idle speculation involved. Ronald Reagan was sworn into office that day after winning the presidency on a platform of shrinking the size of the federal government. To work toward that end, he appointed his friend J. Peter Grace, CEO of the Grace Corporation, to head up a committee that would search out waste in government and cut bureaucracy down to size. No evidence has come to light that the Grace Commission interfered with the NIOSH study, though the implication of the Grace Corporation’s influence must have been clear to everyone involved.

About the same time NIOSH was haggling over its intentions to do an epidemiological study, the EPA announced its intention to complete a sweeping survey of the vermiculite industry, focusing on rumors of a connection to asbestos-related diseases. Prodded by reports of illness at the Scott plant in Ohio, and bolstered with the Bureau of Mines 1971 report on the existence of asbestos in the Libby ore, the EPA writes in a June 1980 assessment, “the extent of exposure from vermiculite derived from the Libby mine is likely to be large, considering that this source accounts for approximately 80 percent of the vermiculite used in the U.S.”

The agency got so far as sending a team up to take samples in Libby at the end of October 1980, and to Grace’s other vermiculite mine in South Carolina a week later, when the plug was pulled abruptly on that study as well. The agency released a report in 1982 explaining the aborted effort thusly: “The original scope of the study included two phases. The first phase was the collection and analysis of air and bulk samples associated with vermiculite ore and beneficiated vermiculite from the four major U.S. mines and ports of entry. The second phase was for a similar effort for a representative number of exfoliation plants.

“Because of priority shifts within EPA, the second phase was not undertaken and the scope of the first phase was reduced,” the report’s author explains dryly.

Twenty years later, the EPA’s Paul Peronard notes the irony. “That was probably the euphemism of the day. They did a fraction of the work that they had planned to do,” he says. “What’s amazing to me is if you look at the tenor of the reports…if you look at some of the background documents, people were treating it as an awful big deal. And then it just stops. There was no grand explanation as to why that should be the case.”

Except, he agrees, for the concurrence of Ronald Reagan’s election and J. Peter Grace’s new position of authority in the Reagan Administration. “Do I have any proof or evidence of that? No, not really,” he admits. “They were clever enough not to write anything down, I guess. But you know the timing surely is a grand coincidence if that’s the case.”

In any case, EPA investigators made no more visits to Libby after the November election. In the wake of the scandal in 1999, the Office of Inspector General would investigate the EPA’s actions during the early 1980s. In that report, the OIG concludes that a pitiful lack of communication was at fault for the agency’s failure to follow through on the clear threat to people’s health. Whether Reagan’s Grace Commission had a hand in the situation or not, Peronard says that he blames his agency. And that knowledge has left him fighting cynicism.

“I think less of my agency I guess than when I started. Even the progress we made in Libby since we started in ’99, you know, we’ve made it very hard to get things done up there. People seem more concerned about the politics and the precedents; the decision for example on the insulation removal. People are more concerned with, well, we might have to do something across the country with other insulation in other places, than they are about the fact that this stuff’s not safe. I guess the only thing I always keep in my mind is that if you don’t keep plugging at it, then it just simply won’t get done. I mean, we have made a whole bunch of progress in Libby. If I allowed myself just to get in a bitch and moan operation, we wouldn’t get stuff done.”

In fact, anyone in a position of authority in the EPA could have taken on the mantle Peronard assumed when his bosses sent him up to Libby just before Christmas in 1999, and they didn’t. I ask him why, and he gives a typical Peronardian answer, the sort that makes the press swoon for him. “Um, because we’re a bunch of chicken-shits? You know, it’s not that dorky of a question. It’s actually one I really hoped the IG investigation would have looked at a little harder. There’s no real good reason for why we didn’t do more.

“If you look at the timing, the agency had started sort of divesting itself of asbestos programs and regulations starting in the early to mid-’80s. This is something that was much more complicated. Almost all asbestos regulation was set on products that were specifically made with an asbestos content, chrysotile asbestos. It’s what all the microscope, analytical techniques were geared toward, and this was sort of an oddball. It was a tramp contaminant that nobody really thought was making it into the final consumer products. So I guess from the EPA, everybody was just saying, it’s a mine worker problem, it’s not our business and we don’t think it’s causing much of a problem elsewhere. We were fairly content to accept that answer.”

Reprinted from Libby, Montana: Asbestos and the Deadly Silence of an American Corporation, copyright 2003 by Andrea Peacock, with permission from Johnson Books, Boulder, Colo.

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