Environmental Health and Safety Advocates Hope W.R. Grace Indictment Sets a Precedent

Feb. 11, 2005
While environmental health and safety advocates are applauding the federal government's recent indictment of W.R. Grace, they're also hopeful it will embolden the government to bring other asbestos scofflaws to justice.

"It's a great first step, but our position is every one of the executives at every one of these asbestos manufacturers should all be indicted on criminal charges," said Richard Wiles, senior vice president of Environmental Working Group, a Washington, D.C.-based environmental advocacy organization. "There's no difference between what they did and what W.R. Grace officials did."

W.R. Grace, according to a Feb. 7 indictment handed down by a federal grand jury in Montana, allegedly put untold numbers of former workers and residents in the Libby, Mont., area at risk of asbestos-related diseases via its vermiculite mining and processing there. W.R. Grace, headquartered in Columbia, Md., "categorically denies" the charges.

Although Wiles made it clear he's galled by the alleged hubris of W.R. Grace officials -- who in the federal indictment are accused of conspiring to conceal the results of several damning internal studies of the toxic nature of tremolite asbestos -- he said it's the "exact same behavior" exhibited by other asbestos manufacturers, many of whom have filed for bankruptcy under the weight of billions of dollars of lawsuits.

"It's the same disease that's in this industry -- which is an inability to tell the truth about the deadly nature of this product," Wiles said, adding that W.R. Grace officials have taken deceit "to a new level in some ways."

Bennett: A conviction needs to be made

President Bush recently beseeched Congress to curb asbestos litigation, calling it a "national problem," according to a Jan. 8 Washington Post article. Wiles, though, said the litigation has been successful not because of a flaw in the judicial system but because juries are getting to read the "amazing flood of internal documents that have shown just how callous and cruel these companies were to their workers," much like the documents cited in the W.R. Grace indictment.

"That's why if you're injured from asbestos you have a good chance of getting some punitive damages from the courts," Wiles said. "When a normal person sees these documents, their reaction is absolute outrage and disgust."

Likewise, Jonathan Bennett, public affairs director for the New York Committee for Occupational Safety and Health, said he believes "there's a tremendous amount of culpability at [W.R.] Grace." However, Bennett added the indictment won't become "a step in the right direction" until a conviction is made.

"I think the prosecutors are probably going after the right people. But that doesn't automatically translate to a conviction," Bennett said.

Still, Bennett lauded federal authorities for the W.R. Grace indictment, and he said the inclusion of seven former and current W.R. Grace executives in the indictment make the case "unprecedented in its scope."

"This kind of indictment has never occurred before, either in an environmental or an occupational health-related case," Bennett said.

Bennett said the case overlaps between occupational and environmental hazards, but the prosecution for the case -- led by Assistant U.S. Attorney Kris McLean and trial attorney Kevin Cassidy of the Justice Department's Environmental Crimes Section -- has taken the correct tack, he believes.

"There are no two ways about the fact that the prosecutor clearly understands that an aspect of this is occupational health," Bennett said. "It's the same hazard that was an environmental hazard to the people of Libby. But there's no statute that has nearly the rigorous penalties for purely occupational exposure [as the statutes cited in this case.] I think the prosecutor has quite correctly used the environmental statute."

The federal government indicted W.R. Grace on 10 counts, including conspiracy to conceal evidence of its knowledge of the health hazards of asbestos exposure; obstruction of justice; wire fraud; and knowing endangerment/violations of the Clean Air Act. If convicted on the Clean Air Act violations alone, W.R. Grace executives could face up to 15 years in prison and a $250,000 fine on each of the three charges.

EPA, federal authorities shoulder part of the blame

Environmental Working Group contends that as far back as the 1930s, asbestos manufacturers and their insurance companies knew that asbestos was killing their workers. Wiles explains it as an "industrywide coordinated effort to deliberately withhold information" on the dangers of asbestos from workers. But he also believes "decades of fiddling around" on the part of the EPA have protracted efforts to regulate asbestos and bring corporate offenders to justice.

Indeed, a 2001 review conducted by the Office of the Inspector General to evaluate EPA's response to the problem of asbestos-laced vermiculite in Libby was less than glamorous.

"Although EPA made attempts to address contaminant asbestos exposure like that in Libby, those attempts did not result in regulations or other controls that might have protected the citizens of Libby," according to the report, which was requested by EPA officials in 2000.

In addition to W.R. Grace's alleged repeated efforts to frustrate and obfuscate EPA and other federal authorities' investigations, the 2001 report said EPA faced a number of other barriers, including funding constraints, ineffective internal communication, lack of data and "fragmented authority and jurisdiction within EPA and between it and other agencies." All of those barriers helped prevent EPA from "sufficiently addressing asbestos-contaminated vermiculite at Libby," the report says.

It also references the media's role as a catalyst in 1999 when various news agencies -- after Andrew Schneider of the Seattle Post-Intelligencer broke the story -- reported that miners, their families and residents in the Libby area had been getting sick or dying from exposure to asbestos-tainted vermiculite for decades. Later that year, EPA officials went to Libby and investigated, and the agency declared the Libby mine area a Superfund site in 2000.

Even so, Environmental working Group's Wiles said "the real devil is industry, without question."

"Sure the feds were really slow on this, to say the least … but every step of the way they had to fight industry to get their data on workers' health, to get inside the plants, to set a standard," Wiles said. "They were opposed every step of the way. It would've been better if government acted more quickly, but the real culprit is industry."

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