ASBESTOS IN PUBLIC WATER SUPPLIES: DISCUSSION OF FUTURE PROBLEMS John P.Hills
Messenger. Lynch, Hills & Miller Eastern Building Beltsville, Maryland 20705
In the literature, there is what is known as a willing suspension of disbelief. The reader is willing to accept the hypothesis, no matter how improbable, and to accept the reality of the novel within its context. In society, with long-term carcinogens, this theory is alive, but it works backward and becomes a willing suspension of belief in the truth. Cigarette smokers, for some psychological reason, suspend their belief in the knowledge that they are incurring a real future risk of lung and other cancers. In Duluth, where the drinking water is contaminated by asbestos fibers, the hotel waitresses were offended and thought it a monstrous joke when our group of scientists and lawyers refused the water. The children of Duluth’s scientists attending school were subjected to ridicule because their parents had told them not to drink tap water at school. The politicians on the local and state levels considered us their enemies, not their friends, because we told them their water was not fit to drink. There is a very valid reason for this reaction. Because of the past uncontrolled use of many harmful substances in our society, scarcely a month goes by without some commonly used substance being attacked as carcinogenic or otherwise harmful. The individual simply cannot keep restricting his diet and activities to accommodate every new announcement. He tends to become very frustrated and, instead of supporting public health efforts to eliminate harmful substances, tends to become distrustful and fatalistic. This attitude leads him to dismiss all of the announcements as irrelevant. If the sun causes cancer; if elimination of the ozone layer by fluorocarbon use increases the risk; if high-flying jets destroy the ozone layer; if nitrates in bacon create harmful nitrosamines; if aflatoxins in our peanut butter cause cancer and if you cannot find out which brands are aflatoxin free; if saccharin in our soft drinks causes cancer; if pesticide residues on our fruit and vegetables and in our milk and diethylstilbestrol residues in meat products all cause cancer; and, finally, if the water in our tap contains asbestos and causes cancer, what other reaction can an individual have except frustration? By necessity, the individual’s natural tendencies toward self-preservation are overwhelmed, and since he can do nothing to control his exposure, he concludes that there is no risk and that the problem is not relevant to his existence. Those who produce the products that create the risk, and profit thereby, usually capitalize on this psychological inability to deal with the risk, argue for continued use of the product without change, and argue against regulations that might lessen the risk to the public. The combined effect of these forces can become societally devastating. They illustrate that the risk of exposure to carcinogens must be treated as a public health problem: it is not one with which the individual can deal successfully. So far, we have talked only about risk, in other words, the probability, however small, that exposure will create an undesired or unanticipated effect. We must also talk about harm. What happens if the risk is realized? In connection with the concept of harm, I would also like to refer to Kurt
573 0077-8923/79/033&0573$01.75/0@1979,NYAS
574
Annals New York Academy of Sciences
Vonnegut’s discovery of Ice Nine, the science fiction writer’s answer to a chain reaction. As you may recall (and I am confident most conscientious scientists have read Cut’s Crude), Ice Nine turned everything it touched to ice. Oceans, human beings, everything, which, in turn, turned everything else to ice until civilization was destroyed. We should anticipate that things sometimes go further than we expect a t the beginning. Phrased another way, as Murphy’s law, if anything can go wrong, it will. This is when the risk of carcinogenicity becomes real and the quality or length of people’s lives are harmed. There is in existence a theory that attempts to deal with the factors of risk and harm in a legal context. It arose out of the Ethyl Corporation case, in which the Environmental Protection Agency’s lead regulations were challenged in the Federal Circuit Court for the District of Columbia, and in the Reserve Mining Company case, in which the Federal government’s attempt to relieve the Duluth, Minnesota water supply of amosite asbestos was challenged in the Federal Circuit Court for the Eighth Circuit. In both cases, it was well recognized that a large number of people were exposed to a substance that is harmful to health. But in each case, the risk, or probability that harm might occur, was uncertain. In this area, unknowns were being considered. Risk and harm were, in both cases, treated as reciprocals in arriving at the course of action the court would order. Risk is the probability that an event will occur. The risk of ingestion of asbestos is the probability that ingestion of X amount of asbestos by X number of people will cause X cancers. Harm is the X number of people exposed and the X number of cancers. The hypothesis adopted, and one that I advocate, is that if a large number of people are exposed to a serious illness, such as cancer, we should take action to eliminate this potential, even though the probability that it will actually happen is little more than remote or speculative. The courts abandoned traditional legal tests in these decisions and applied this reasoning, which I call the “reciprocal risk theory.” When we apply the above observations and theory to the problem at hand, that is, future problems with asbestos in drinking water, we can reason as follows: We know asbestos is present in drinking water; we know that when ingested, it traverses the human system and is expelled through the bladder; we know that asbestos is a human carcinogen; those of us with no economic interest to protect know that it should be removed from drinking water. To do this, the uses of asbestos in our society that cause asbestos to be present in drinking water will have to be stopped. The reader might counter that the appropriate data are not yet available, that action is premature; that experiments need to be conducted, that animal testing is at this moment in progress, and that studies are being conducted in the Duluth population. Arguing back and forth, it could be shown likely that our state of knowledge will, in fact, not be advanced until many people have died. For instance, one would think that Duluth, Minnesota would be a perfect experiment. An industry has obliged by providing a rather steady diet of amosite asbestos in the drinking water of a relatively stable human population, large enough to derive statistically significant results. But, as happens so many times, the experiment was flawed from the beginning and will probably reveal nothing. The same population is included within a larger one that already has the highest stomach cancer rate in the nation, partly because of its ethnic origin and eating habits, and partly because it is a mining population and is occupationally exposed to inhalation of rock particles. So, unless there is a massive effect from drinking the water, the background noise will probably obscure the result, and if we wait for the result, we will have exposed many additional people to the risk.
Hills: Public W a t e r Supplies
575
However, since we as a society tend to adopt the cigarette smokers’ psychology toward public health problems, and because we are slow to adopt the truth of Murphy’s law, we can assume that most uses of asbestos will not be discontinued and that asbestos will not be removed from drinking water. This problem exists, and I anticipate that it will exist in the future. It is a societal public health problem, not a scientific problem. While I was an attorney for the Federal government, I became deeply involved in the asbestos controversy, particularly with respect to water supplies, in connection with the Reserve Mining Company case. In the course of that proceeding, 1 examined many expert witnesses and cross-examined many others tendered by the industry. I became impressed with the fact that those with an economic interest to protect can capitalize on society’s inherent disability to deal effectively with public health problems and put their economic power, which is often considerable, in opposition to the public good. One very effective way to do so is by misusing scientific evidence. We can anticipate that this misuse will continue until the economic motivation disappears. I would like to give a few examples of actions by the Federal government that will help destroy this motive. The examples are intentionally not asbestos industry oriented. KeponeQ in rhe James River. I recently reviewed the indictment and some of the evidence. As the reader may be aware, Allied Chemical Company of Hopewell, Virginia was indicted on more than 1000 criminal counts for dumping large amounts of Kepone wastes into the James River. Kepone is a very toxic material, and the wastes contained pesticide residue and chlorinated hydrocarbons. The company was fined more than $1 3,000,000 ($8,000,000 of which was later forgiven); corporate officials were indicted but not convicted. Government Exhibit 483 in that file was a memorandum dated June 25, 1963, about 10 years before the suit was brought. It was written in connection with a proposed submittal of Kepone to the Food and Drug Administration for approval as a crop pesticide. Under discussion was the release to the public of information showing Kepone to be toxic and carcinogenic. Incidentally, apparently no application was made. It said: Since the investigation of this compound reveals it to be a very toxic material if chronically ingested, with possible malignant effects, it was the object of the writer to be certain that data were presented in no worse light than was consistent with the facts and to obtain deferment of publication until the Food and Drug Administration has made its decision on whether or not the material is acceptable, with tolerances, for use on food crops.
This memorandum showed that company officials knew the hazards of their effluent at an early date. It also demonstrates a willingness to misuse scientists and scientific data. Count 942 of that indictment deserves particular interest, for it alleged a conspiracy to withhold information from the Federal government about a toxic waste discharge. Government Exhibit 218, dated March 6, 1972, was an internal memorandum regarding Allied Chemical Corporation. It stated, in part: In our original Corps of Engineers Application this effluent was noted as “Semi-works discharge (6-1 2 months)” indicating that it was a temporary unmetered discharge and an analysis was not included in our application. It was felt that the effluent might go unnoticed by the EPA until we tied into the RWTP, or at worst, interim treatment might be required.
This discharge, of course, was one of the plant’s most lethal. The recommended course
576
Annals New
York Academy of Sciences
of action was to report only the semiworks flow rate to the Environmental Protection Agency, excluding its chemical composition, and to wait for the Federal government to take the next step. With this sort of ethical approach at work, it is no surprise that the Permit Applications to the Environmental Protection Agency and the Army Corps of Engineers did not mention that either pesticides or chlorinated hydrocarbons were present in the discharge. And yet this material was so toxic that the 30 or so employees of Life Sciences, who formed that spin-off corporation to produce it, sustained permanent and disabling health damage, and Chesapeake Bay, one of the world’s most productive estuaries, has sustained permanent environmental damage. The company officials were not convicted on the conspiracy counts. Mercury in Niugaru River. More recently, a grand jury indicted Olin Corporation and named individuals in the corporation as coconspirators. This corporation is located in Niagara Falls, New York. In 1970, it entered into a stipulation with the Department of Justice whereby its mercury discharges into the Niagara River would be reduced to 0.5 Ib/day. Later, the Environmental Protection Agency granted a permit reducing the discharge to 0.2 Ib/day. The indictment alleges that between 1960 and 1977, the company represented to the Federal Government, on various days, that it was discharging certain small amounts of mercury, all within permissible limits. But, it is alleged, the company’s records showed another, larger amount. By adding up the amounts involved, extrapolating from the various criminal counts, the company represented that it had discharged 89.81 Ib over the period involved, whereas its records revealed that it had discharged (according to the indictment) 2035.9 Ib of mercury into the river in the same period. The indictment alleges a conspiracy to withhold the true data from the Federal Government. Food Additives. A third example I will cite is a recent indictment against Velsicol Chemical Corporation and named corporate employees. This plant is located in Chicago, Illinois. This indictment, returned by the grand jury for the Northern District of Illinois, alleges that Velsicol had pending before the Environmental Protection Agency a petition for a food additive tolerance. Of course, as the reader probably is aware, substances found to cause cancer in humans or animals, are not permissible as food additives. The indictment alleges that Velsicol entered into a contract with a corporation to test the tumorigenic potential of heptachlor and chlordane. The corporation and two physicians reported back to Velsicol that the tissues examined contained benign tumors, pretumorous lesions, and cancers. But, it is alleged, the company withheld the data and made false statements to the Environmental Protection AGency. I might note that the company has hired the best legal defense available and now has 43 pretrial motions on record. I submit that what we see in the above cases are only the most extreme examples of what is, in fact, a commonplace occurrence: that misrepresentation and misuse of scientific data is a problem of major proportions that has caused serious health damage to our citizens, not to mention serious damage to our environment. My experience with the asbestos industry indicates that it has been a leader, not a follower, in this area and that some of the blackest days in our country’s history of occupational and environmental health have been caused by the asbestos industry’s misuse of scientists and scientific data. The importance of each of the above examples is that individuals, corporate officers, have been indicted. The corporate shield cannot protect them. They have been, or are, at risk of sustaining harm to their way of life, of hearing the jail doors slam behind them. This is a risk that approximates the risks they impose on others. In
Hills: Public Water Supplies
577
the Kepone case, the men individually accused of crime were not convicted. To my knowledge, no corporate officer has yet gone to jail for this kind of crime, but hopefully this situation will soon end, and those who withhold data will be treated as criminals. If alert stockholders insist that company funds are not used to defend individuals, and if those who have been accused are suspended from their positions until after the trial, the motive to mislead the public in the name of profit can be even further stymied. In summary, the principal problem to be anticipated in dealing with drinking water supplies contaminated with asbestos fibers is societal inertia. The tendency of this inertia will be that society will continue to do nothing. The reason for the inertia is that individuals will see it as one of the lesser of those factors that conspire to shorten their lives; that public health officials will not recognize the reality of the risk or the magnitude of the harm and will fail to make realistic appraisals; and that industry will economically support inaction with its scientists, its data, and its economic power and thus will continue to do so until such time as society makes it more attractive, or profitable, to protect public health than to harm it.
Messenger. Lynch, Hills & Miller Eastern Building Beltsville, Maryland 20705
In the literature, there is what is known as a willing suspension of disbelief. The reader is willing to accept the hypothesis, no matter how improbable, and to accept the reality of the novel within its context. In society, with long-term carcinogens, this theory is alive, but it works backward and becomes a willing suspension of belief in the truth. Cigarette smokers, for some psychological reason, suspend their belief in the knowledge that they are incurring a real future risk of lung and other cancers. In Duluth, where the drinking water is contaminated by asbestos fibers, the hotel waitresses were offended and thought it a monstrous joke when our group of scientists and lawyers refused the water. The children of Duluth’s scientists attending school were subjected to ridicule because their parents had told them not to drink tap water at school. The politicians on the local and state levels considered us their enemies, not their friends, because we told them their water was not fit to drink. There is a very valid reason for this reaction. Because of the past uncontrolled use of many harmful substances in our society, scarcely a month goes by without some commonly used substance being attacked as carcinogenic or otherwise harmful. The individual simply cannot keep restricting his diet and activities to accommodate every new announcement. He tends to become very frustrated and, instead of supporting public health efforts to eliminate harmful substances, tends to become distrustful and fatalistic. This attitude leads him to dismiss all of the announcements as irrelevant. If the sun causes cancer; if elimination of the ozone layer by fluorocarbon use increases the risk; if high-flying jets destroy the ozone layer; if nitrates in bacon create harmful nitrosamines; if aflatoxins in our peanut butter cause cancer and if you cannot find out which brands are aflatoxin free; if saccharin in our soft drinks causes cancer; if pesticide residues on our fruit and vegetables and in our milk and diethylstilbestrol residues in meat products all cause cancer; and, finally, if the water in our tap contains asbestos and causes cancer, what other reaction can an individual have except frustration? By necessity, the individual’s natural tendencies toward self-preservation are overwhelmed, and since he can do nothing to control his exposure, he concludes that there is no risk and that the problem is not relevant to his existence. Those who produce the products that create the risk, and profit thereby, usually capitalize on this psychological inability to deal with the risk, argue for continued use of the product without change, and argue against regulations that might lessen the risk to the public. The combined effect of these forces can become societally devastating. They illustrate that the risk of exposure to carcinogens must be treated as a public health problem: it is not one with which the individual can deal successfully. So far, we have talked only about risk, in other words, the probability, however small, that exposure will create an undesired or unanticipated effect. We must also talk about harm. What happens if the risk is realized? In connection with the concept of harm, I would also like to refer to Kurt
573 0077-8923/79/033&0573$01.75/0@1979,NYAS
574
Annals New York Academy of Sciences
Vonnegut’s discovery of Ice Nine, the science fiction writer’s answer to a chain reaction. As you may recall (and I am confident most conscientious scientists have read Cut’s Crude), Ice Nine turned everything it touched to ice. Oceans, human beings, everything, which, in turn, turned everything else to ice until civilization was destroyed. We should anticipate that things sometimes go further than we expect a t the beginning. Phrased another way, as Murphy’s law, if anything can go wrong, it will. This is when the risk of carcinogenicity becomes real and the quality or length of people’s lives are harmed. There is in existence a theory that attempts to deal with the factors of risk and harm in a legal context. It arose out of the Ethyl Corporation case, in which the Environmental Protection Agency’s lead regulations were challenged in the Federal Circuit Court for the District of Columbia, and in the Reserve Mining Company case, in which the Federal government’s attempt to relieve the Duluth, Minnesota water supply of amosite asbestos was challenged in the Federal Circuit Court for the Eighth Circuit. In both cases, it was well recognized that a large number of people were exposed to a substance that is harmful to health. But in each case, the risk, or probability that harm might occur, was uncertain. In this area, unknowns were being considered. Risk and harm were, in both cases, treated as reciprocals in arriving at the course of action the court would order. Risk is the probability that an event will occur. The risk of ingestion of asbestos is the probability that ingestion of X amount of asbestos by X number of people will cause X cancers. Harm is the X number of people exposed and the X number of cancers. The hypothesis adopted, and one that I advocate, is that if a large number of people are exposed to a serious illness, such as cancer, we should take action to eliminate this potential, even though the probability that it will actually happen is little more than remote or speculative. The courts abandoned traditional legal tests in these decisions and applied this reasoning, which I call the “reciprocal risk theory.” When we apply the above observations and theory to the problem at hand, that is, future problems with asbestos in drinking water, we can reason as follows: We know asbestos is present in drinking water; we know that when ingested, it traverses the human system and is expelled through the bladder; we know that asbestos is a human carcinogen; those of us with no economic interest to protect know that it should be removed from drinking water. To do this, the uses of asbestos in our society that cause asbestos to be present in drinking water will have to be stopped. The reader might counter that the appropriate data are not yet available, that action is premature; that experiments need to be conducted, that animal testing is at this moment in progress, and that studies are being conducted in the Duluth population. Arguing back and forth, it could be shown likely that our state of knowledge will, in fact, not be advanced until many people have died. For instance, one would think that Duluth, Minnesota would be a perfect experiment. An industry has obliged by providing a rather steady diet of amosite asbestos in the drinking water of a relatively stable human population, large enough to derive statistically significant results. But, as happens so many times, the experiment was flawed from the beginning and will probably reveal nothing. The same population is included within a larger one that already has the highest stomach cancer rate in the nation, partly because of its ethnic origin and eating habits, and partly because it is a mining population and is occupationally exposed to inhalation of rock particles. So, unless there is a massive effect from drinking the water, the background noise will probably obscure the result, and if we wait for the result, we will have exposed many additional people to the risk.
Hills: Public W a t e r Supplies
575
However, since we as a society tend to adopt the cigarette smokers’ psychology toward public health problems, and because we are slow to adopt the truth of Murphy’s law, we can assume that most uses of asbestos will not be discontinued and that asbestos will not be removed from drinking water. This problem exists, and I anticipate that it will exist in the future. It is a societal public health problem, not a scientific problem. While I was an attorney for the Federal government, I became deeply involved in the asbestos controversy, particularly with respect to water supplies, in connection with the Reserve Mining Company case. In the course of that proceeding, 1 examined many expert witnesses and cross-examined many others tendered by the industry. I became impressed with the fact that those with an economic interest to protect can capitalize on society’s inherent disability to deal effectively with public health problems and put their economic power, which is often considerable, in opposition to the public good. One very effective way to do so is by misusing scientific evidence. We can anticipate that this misuse will continue until the economic motivation disappears. I would like to give a few examples of actions by the Federal government that will help destroy this motive. The examples are intentionally not asbestos industry oriented. KeponeQ in rhe James River. I recently reviewed the indictment and some of the evidence. As the reader may be aware, Allied Chemical Company of Hopewell, Virginia was indicted on more than 1000 criminal counts for dumping large amounts of Kepone wastes into the James River. Kepone is a very toxic material, and the wastes contained pesticide residue and chlorinated hydrocarbons. The company was fined more than $1 3,000,000 ($8,000,000 of which was later forgiven); corporate officials were indicted but not convicted. Government Exhibit 483 in that file was a memorandum dated June 25, 1963, about 10 years before the suit was brought. It was written in connection with a proposed submittal of Kepone to the Food and Drug Administration for approval as a crop pesticide. Under discussion was the release to the public of information showing Kepone to be toxic and carcinogenic. Incidentally, apparently no application was made. It said: Since the investigation of this compound reveals it to be a very toxic material if chronically ingested, with possible malignant effects, it was the object of the writer to be certain that data were presented in no worse light than was consistent with the facts and to obtain deferment of publication until the Food and Drug Administration has made its decision on whether or not the material is acceptable, with tolerances, for use on food crops.
This memorandum showed that company officials knew the hazards of their effluent at an early date. It also demonstrates a willingness to misuse scientists and scientific data. Count 942 of that indictment deserves particular interest, for it alleged a conspiracy to withhold information from the Federal government about a toxic waste discharge. Government Exhibit 218, dated March 6, 1972, was an internal memorandum regarding Allied Chemical Corporation. It stated, in part: In our original Corps of Engineers Application this effluent was noted as “Semi-works discharge (6-1 2 months)” indicating that it was a temporary unmetered discharge and an analysis was not included in our application. It was felt that the effluent might go unnoticed by the EPA until we tied into the RWTP, or at worst, interim treatment might be required.
This discharge, of course, was one of the plant’s most lethal. The recommended course
576
Annals New
York Academy of Sciences
of action was to report only the semiworks flow rate to the Environmental Protection Agency, excluding its chemical composition, and to wait for the Federal government to take the next step. With this sort of ethical approach at work, it is no surprise that the Permit Applications to the Environmental Protection Agency and the Army Corps of Engineers did not mention that either pesticides or chlorinated hydrocarbons were present in the discharge. And yet this material was so toxic that the 30 or so employees of Life Sciences, who formed that spin-off corporation to produce it, sustained permanent and disabling health damage, and Chesapeake Bay, one of the world’s most productive estuaries, has sustained permanent environmental damage. The company officials were not convicted on the conspiracy counts. Mercury in Niugaru River. More recently, a grand jury indicted Olin Corporation and named individuals in the corporation as coconspirators. This corporation is located in Niagara Falls, New York. In 1970, it entered into a stipulation with the Department of Justice whereby its mercury discharges into the Niagara River would be reduced to 0.5 Ib/day. Later, the Environmental Protection Agency granted a permit reducing the discharge to 0.2 Ib/day. The indictment alleges that between 1960 and 1977, the company represented to the Federal Government, on various days, that it was discharging certain small amounts of mercury, all within permissible limits. But, it is alleged, the company’s records showed another, larger amount. By adding up the amounts involved, extrapolating from the various criminal counts, the company represented that it had discharged 89.81 Ib over the period involved, whereas its records revealed that it had discharged (according to the indictment) 2035.9 Ib of mercury into the river in the same period. The indictment alleges a conspiracy to withhold the true data from the Federal Government. Food Additives. A third example I will cite is a recent indictment against Velsicol Chemical Corporation and named corporate employees. This plant is located in Chicago, Illinois. This indictment, returned by the grand jury for the Northern District of Illinois, alleges that Velsicol had pending before the Environmental Protection Agency a petition for a food additive tolerance. Of course, as the reader probably is aware, substances found to cause cancer in humans or animals, are not permissible as food additives. The indictment alleges that Velsicol entered into a contract with a corporation to test the tumorigenic potential of heptachlor and chlordane. The corporation and two physicians reported back to Velsicol that the tissues examined contained benign tumors, pretumorous lesions, and cancers. But, it is alleged, the company withheld the data and made false statements to the Environmental Protection AGency. I might note that the company has hired the best legal defense available and now has 43 pretrial motions on record. I submit that what we see in the above cases are only the most extreme examples of what is, in fact, a commonplace occurrence: that misrepresentation and misuse of scientific data is a problem of major proportions that has caused serious health damage to our citizens, not to mention serious damage to our environment. My experience with the asbestos industry indicates that it has been a leader, not a follower, in this area and that some of the blackest days in our country’s history of occupational and environmental health have been caused by the asbestos industry’s misuse of scientists and scientific data. The importance of each of the above examples is that individuals, corporate officers, have been indicted. The corporate shield cannot protect them. They have been, or are, at risk of sustaining harm to their way of life, of hearing the jail doors slam behind them. This is a risk that approximates the risks they impose on others. In
Hills: Public Water Supplies
577
the Kepone case, the men individually accused of crime were not convicted. To my knowledge, no corporate officer has yet gone to jail for this kind of crime, but hopefully this situation will soon end, and those who withhold data will be treated as criminals. If alert stockholders insist that company funds are not used to defend individuals, and if those who have been accused are suspended from their positions until after the trial, the motive to mislead the public in the name of profit can be even further stymied. In summary, the principal problem to be anticipated in dealing with drinking water supplies contaminated with asbestos fibers is societal inertia. The tendency of this inertia will be that society will continue to do nothing. The reason for the inertia is that individuals will see it as one of the lesser of those factors that conspire to shorten their lives; that public health officials will not recognize the reality of the risk or the magnitude of the harm and will fail to make realistic appraisals; and that industry will economically support inaction with its scientists, its data, and its economic power and thus will continue to do so until such time as society makes it more attractive, or profitable, to protect public health than to harm it.
