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The State of Rhode Island’s efforts, which began in 1999, to force lead-paint manufacturers to clean-up contaminated homes received a mortal blow when the State’s Supreme Court reversed a lower court’s 2006 decision. (Full decision from 7/1/2008) This early ruling was a result of the longest civil jury trial in Rhode Island history, with the decision going against the defendants Sherwin-Williams, NL Industries, and Millennium Holdings, holding them liable for creating a public nuisance by selling lead-based paint.
The R.I. Supreme Court said:
“We do not mean to minimize the severity of the harm that thousands of children in Rhode Island have suffered as a result of lead poisoning. Our hearts go out to those children whose lives forever have been changed by the poisonous presence of lead. But, however grave the problem…public nuisance law simply does not provide a remedy for this harm.”
This tells me that we need some better laws so that we can hold peddlers of dangerous products accountable for their actions. As David Rosner and Jerry Markowitz masterfully document in their paper “Cater to the Children” and their book Deceit and Denial, the lead industry knew by the 1930’s the adverse health consequences that would be caused by their actions, but they didn’t care and greed won out. The R.I. Supreme Court’s decision gives a free pass to the lead industry’s despicable behavior.
Today’s Washington Post includes a great article by Lyndsey Layton that contrasts European Union and U.S. chemical laws and explores how EU actions might affect products on U.S. shelves. Here’s Layton’s explanation of EU law and the philosophy that guides it:
No, not V-8 the vegetable drink, but C8, the common name for ammonium perfluorooctanoate, an ingredient in Teflon and other non-stick products. Ken Ward of the Charleston Gazette reports today on the levels of perfluorooctanoic acid in the blood of about 69,000 residents living near the DuPont Co.’s Parkersburg, WV plant where C8 was manufactured. The results are posted on the West Virginia University’s Health Science’s center website. The median C8 blood-level was
“more than five times the U.S. general population.”
The highest median blood-concentration levels (i.e., 132 ppb) were found among residents who get their tap water from the Little Hocking Water Association in Ohio. Ward’s story indicates the median level in the general U.S. population is 5 ppb.
by Susan F. Wood, PhD
It’s not often, if ever, that an FDA sponsored report calls out for more resources, more direct action and organizational change for FDA. The recently released report (PDF) by the Subcommittee on Science and Technology for the FDA Science Board does just that. Although I wouldn’t necessary agree with all of the recommendations, and would call out for a few more, the report identifies some of the real needs at FDA for strengthened science. The FDA Science Board, an Advisory Committee to the FDA, has issued earlier reports, but none with the timeliness and potential impact of this one. Most of the press coverage has been on the call for expanded resources - which are truly needed - but the report also identifies some of the scientific infrastructure needs that trail behind our expectations of this critical public health agency. I don’t know if FDA expected this type of report, but hopefully it can be useful as a way to move the agency forward.
From the report:
By David Egilman
Jack Kevorkian was tried several times for second degree murder for assisting at suicide. He was finally convicted of second degree murder for one such “assist.” The state never asserted that the person who was killed was uninformed or had not participated in the decision to hire Kevorkian to assist in their own death. Patients knew of the risk they were taking when they contacted Dr. Kevorkian to help them kill themselves.
by Liz Borkowski
Bush appointees and polluting industries may oppose states’ attempts to regulate greenhouse gas emissions, but courts have been ruling in states’ favor. In April, the Supreme Court found that EPA, contrary to its insistence, does in fact have the authority to regulate carbon dioxide emissions. Last week, a federal judge upheld a Vermont law establishing reduced greenhouse gas emission standards for new cars sold in that state.
Like the Supreme Court justices, U.S. District Judge William Sessions found that state efforts to regulate greenhouse gas emissions are perfectly in line with what Congress intended when it passed the relevant legislation – and he also didn’t buy assertions by the auto-industry plaintiffs that Vermont’s law would spell disaster for consumers and auto workers.
By Susan F. Wood, PhD
In an article in the New England Journal of Medicine today, Sheila Weiss Smith points out that the FDA has not been responsive to the Institute of Medicine (IOM) report on Drug Safety. That study and its recommendations took on the question of how to improve our nation’s drug safety system, specifically through regulation by FDA. In her Perspective article, Dr. Smith writes:
In general, the IOM implored the agency to “embrace a culture of safety” by increasing the priority accorded to the safety of patients. Such an emphasis could have ramifications for medical care that would be as broad and positive as those that the 1999 IOM report on medical error, To Err Is Human,2 has had for the health care system. Sadly, the FDA’s official response falls far short of what the American public expects and deserves.
Jeff Lehr at the Joplin Globe reports that a new round of lawsuits has been filed against makers of an artificial butter flavoring used at a microwave popcorn plant in Jasper County, Missouri. Exposure to artificial butter flavoring – in particular, the chemical diacetyl – has been linked to severe obstructive lung disease, and the 44 plaintiffs in the two latest lawsuits allege that exposure to butter flavoring caused severe impairment of their lungs. Lehr explains:
My colleague Celeste Monforton has just posted a new case study at DefendingScience.org, and it’s worth a read for anyone interested in industry attempts to bury information about products’ potential harmful effects.
The American Conference of Governmental Industrial Hygienists (ACGIH) is a private, not-for-profit, professional organization for practitioners in the field of workplace and environmental health and safety. Since 1946, ACGIH committees have studied substances to which workers are exposed and recommended Threshold Limit Values (TLVs), which are akin to exposure limits.
The reason ACGIH has come under fire is basically that it has filled a void left by OSHA inactivity – and some industries would rather see that void be left empty.
Federal Judge Robert C. Chambers, US District Court for the Southern District of West Virginia, ruled in favor of environmental groups in their claim against coal mine operators and practices related to mountaintop removal mining.* This form of surface mining involves blasting off the top of mountains, scooping out the coal, and dumping the unwanted rock and soil into the valley. This waste material often chokes off streams and causes other damage to the communities and the environment in the down-below valleys. The West Virginia Highlands Conservancy, Coal River Mountain Watch, and the Ohio Valley Environmental Coalition, applauded the judge’s ruling, the second time the judge ruled in favor of the environmental groups’ efforts to stop mountain-top mining (MTM).
The public (that’s you) have until May 24 to comments on EPA’s list of nominees for its Science Advisory Board panel on asbestos. David Michaels has weighed in on this issue and is submitting his comments today to EPA. Another organization providing input is the Natural Resources Defense Council (NRDC). Writing on behalf of NRDC, senior scientist Jennifer Sass writes:
On the whole, industry-employed scientists and scientists working for industry-supported research institutions tend to downplay the effects of toxic chemicals. …Here, many, if not most of the industry nominees developed their asbestos publication record in the last five years, becoming “instant experts” in the service of their corporate clients. The nominees are unfit to provide EPA with robust independent scientific advice.
A complete list of the nominees appears here.
“That mine scared me to death,” is the headline for the Charleston Gazette’s story by stellar reporter Ken Ward. He relays the experience of MSHA inspector, Minness Justice, who was responsible for inspecting A.T. Massey’s Aracoma Alma No. 1 mine in the three month’s preceding the coal mine fire on January 19, 2006, which killed miners Don Bragg, 33 and Ellery Hatfield, 46. The inspector admits he didn’t see a missing ventilation wall which likely would have prevented some of the smoke from the conveyor belt fire from penetrating into the miners’ escapeway. Ward’s interview reveals in troubling prose the challenges faced by mine inspectors:
“‘There are maybe 13,000 stopppings in this coal mine,’ Justice said, ‘We don’t touch every stopping in the mine.’”
In March 2006, a coalition of industry trade groups, led by the National Association of Manufacturers (NAM), filed suit in federal court challenging OSHA’s Hazard Communication Standard. This rule, issued by OSHA in 1983, (48 Federal Register 53280) provides fundamental right-to-know protections to most U.S. workers. Among other things, the HazCom rule requires employers to give workers access to material safety data sheets (MSDS) which contain information on chemical substances to which the workers may be exposed on the job. The MSDS’s are required to include health hazard information, such as specific target organ effects, and any OSHA permissible exposure or threshold limit value (TLV) recommended by the American Conference of Governmental Industrial Hygienists (ACGIH). It was OSHA’s longstanding reference to the ACGIH TLVs that raised the ire of the NAM and the subject of the lawsuit. On May 11, 2007, Justice David Tatel rejected the industry groups’ arguments, noting “the reference to the ‘latest edition’ of the hygienists’ list have been part of the regulations for some twenty years, we dismiss the petition as untimely.”
A few hours ago, the Supreme Court ruled in Massachusetts vs. EPA that EPA has the authority to regulate carbon dioxide from auto emissions. (For background on the case, see this post.)
David Stout of the New York Times summarizes:
Some of you may recall Mike Casey’s compelling exposé in the Kansas City Star (Wayback Machine version here) regarding OSHA’s outrageously low fines for safety violations– even those directly responsible for serious injuries to or even deaths of unsuspecting workers. While OSHA is supposedly committed to levy fines “sufficient to serve as an effective deterrent to violations”—the punishment rarely fits the crime. According to former OSHA assistant secretary Jerry Scannell, (1989-1992), the current fines are “almost like chump change with some companies.”
Read the rest of this entry »
Mining companies opposed to a health standard to protect underground miners from diesel particulate matter (DPM) finally had their day in court. The morning proceeding featured remarks about tail-wagging dogs and coal-mine canaries, presented before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit. Industry attorneys urged the Court to vacate the exposure limits and other provisions of the Mine Safety and Health Administration’s (MSHA) 2001 DPM rule. From my vantage point sitting on the public gallery benches, Chief Judge Douglas H. Ginsberg, Senior Judge Harry T. Edwards and Judge David B. Sentelle seemed unimpressed by the industry’s arguments.
By Sheldon Krimsky
ExxonMobil has already come under scrutiny for funding global warming deniers, but the company has also funded research that raises concerns about conflict of interest in litigation research. The company began funding litigation research after being hit with punitive damages for the Exxon Valdez oil tanker spill, and then cited that research in an appeal that ultimately reduced those damages by $2 billion.
by David Rosner and Gerald Markowitz
Mr. Milkey (for the State of Massachusetts): Respectfully, Your Honor. It is not the stratosphere. It’s the troposphere.
Justice Scalia: Troposphere, whatever. I told you before I’m not a scientist.
(Laughter)Justice Scalia: That’s why I don’t want to deal with global warming, to tell you the truth. [PDF of arguments here]
We all know that our children lack basic understanding of science and how it works. The dearth of math and science majors in our universities and the huge percentage of kids who know little or nothing about evolutionary theory are illustrative. But when our Supreme Court Justices expose similar ignorance about the uncertainties that are basic to all scientific inquiry, the situation is truly frightening. It’s not that all of us have to understand the differences between the troposphere and the stratosphere, as Justice Scalia plainly admits. But at least a basic understanding of the questions and issues that inform science would certainly be important in reaching judgments about critical issues that will affect the future of us all. No situation better exemplifies the potential catastrophes that may await us all due to this lack of understanding than the questioning by Justices Scalia, Alito and Roberts in the critical environmental suit Massachusetts v. Environmental Protection Agency.
By David Michaels
In 1993, the US Supreme Court ruled in Daubert v. Merrell Dow Pharmaceuticals, Inc. that judges must act as “gatekeepers” in the courtroom, determining if the scientific evidence introduced is relevant and reliable. The Daubert decision has had tremedous impact on how science is used (and misused) in courts.
That judges are not scientists, and are likely to have difficulty evaluating complex scientific evidence, was underscored in last week’s argument over whether the EPA should regulate the greenhouse gas carbon dioxide as a pollutant. When Justice Antonin Scalia was corrected on his statement about where in the atmosphere carbon dioxide ends up, he responded:
“Troposphere, whatever. I told you before I’m not a scientist.”
Laughter followed.
