St. Louis (Mo.) Post Dispatch
October 26, 2003


By Andrew Schneider

The federal government's 17-year effort to warn backyard and
professional mechanics of the dangers of cancer-causing
asbestos in brakes is under attack.

The international law firm of Morgan, Lewis & Bockius has
petitioned the Environmental Protection Agency to stop
distributing warning booklets, posters and videotapes that give
mechanics guidance on the need to protect themselves from
asbestos. The 10-page petition called the science on which the
material was based unproven and irrational.

The firm said the EPA's guidance for mechanics had been used to
support thousands of personal injury lawsuits brought against
hundreds of American companies by mechanics. The suits
involving the auto workers alleged they were sickened or killed
by exposure to asbestos in brakes.

The firm refused repeated requests to identify its client in
the effort to stop the booklets, but it has represented at
least one major asbestos firm and two insurance companies
involved in asbestos litigation.

The lawyers took their action under an obscure law passed in
2001 called the Data Quality Act. It demands that government
agencies work with the White House's Office of Management and
Budget to establish a process that permits "affected persons"
to challenge information gathered and disseminated by the

Rep. Jo Ann Emerson, R-Mo., said she introduced the
four-paragraph measure as a rider to an appropriation bill "to
ensure accountability to the taxpayer." Emerson's staff said
the language for the law came from Jim Tozzi. He is the
director of the Center for Regulatory Effectiveness, an
industry-funded group scrutinizing government regulations.
Tozzi worked for the Office of Management and Budget during the
Nixon, Ford, Carter and Reagan administrations.

Still a threat

Court filings and public health surveys indicate that thousands
of auto workers are diagnosed each year with asbestos-related
diseases, such as mesothelioma, lung cancer and asbestosis. Few
mechanics take protective measures when working with brakes -
mainly, they say, because they believe asbestos is no longer

They are wrong. Although the major car makers say they no
longer use asbestos, the brakes on many older cars contain the
fibers. More than $124 million worth of asbestos brake material
was imported into the United States last year. Thus, the
potential danger will exist for decades as replacement brakes
containing asbestos continue to be put on vehicles.

The Post-Dispatch talked to about two dozen St. Louis mechanics
or garage managers. All but two said that asbestos had been
banned and is no longer in brakes.

Leaving no fingerprints

Dr. Sidney Shapiro, a law professor at the University of Kansas
who has written and lectured on the value and danger of the
information act, said he is concerned that "the legislation
opens the door for corporations and trade associations to
attack any scientific information that EPA makes public, and
asbestos is a fine example." Shapiro is with the Center for
Progressive Regulation, a group that examines regulations on
environmental and consumer interests.

He added: "The act is also a great tool for OMB to try to
influence policy because their involvement won't leave any

The White House is already being heavily criticized by some
lawmakers for its Council on Environmental Quality, which
guides the president on environmental issues, and allegations
that the Office of Management and Budget is influencing the
actions of the EPA. The budget agency counters that it doesn't
meddle in the agency's Data Quality Act decisions.

"The Act itself places us in a broad oversight role but does
not specify how the OMB-agency relationship should be handled,"
said a senior OMB official. "OMB has encouraged agencies to
consult with us before they respond. However, it is the
agencies that decide how to respond."

The Gold Book

The law firm, based in Philadelphia, says the dire warnings
regarding asbestos exposure have no scientific basis. It has
demanded that the EPA renounce years of extensive studies that
state otherwise.

The main target in their petition is a thin gold-colored EPA
pamphlet titled "Guidance for Preventing Asbestos Disease Among
Auto Mechanics." Tens of thousands of copies of the Gold Book
and other asbestos warning material have been distributed to
schools, garages, auto dealers and unions since they were first
published 17 years ago.

For two years in the mid-'80s, the EPA and asbestos experts
from the Occupational Safety and Health Administration gathered
extensive research on exposure to mechanics from leading
government and civilian scientists.

The petition says that the EPA has it all wrong and that brake
repair work is safe.

"The continuing availability of the Gold Book, and its alarmist
and inflammatory tone continues to hinder a fair-minded
assessment of the hazards, if any, imposed to users of
asbestos-containing friction products," the petition states.

Steve Johnson, the acting deputy administrator of the EPA, said
the Gold Book was being revised before the petition arrived,
but he insisted that the science upon which the guide was based
was "solid" and "we stand by it today." Over the past few
years, "we've learned a great deal more about asbestos and its
dangers, which are significant," Johnson said. "We are looking
at all of our asbestos programs to ensure that they reflect the
latest information on the hazards."

Johnson said he wasn't permitted to discuss the EPA's position
on the petition but said a decision would be made by Nov. 24.

Thousands of suits

The lawyers said they are concerned about what happens in

"In the highly charged environment of such litigation, the Gold
Book has been used to try to sway jurors, who are told that it
represents EPA's current position and thinking on the question
of whether asbestos-containing friction products are dangerous
to users.

"Outside the courtroom," the petition reads, "continuing
availability of the Gold Book, and its alarmist and
inflammatory tone, hinders a fair-minded assessment of the
hazards, if any, posed to users of asbestos containing friction

Ernie Conry, a retired mechanic, is involved in a suit. He is
sick. He has mesothelioma, a fast-killing form of cancer caused
only by exposure to asbestos. It usually is fatal within eight
to 10 months. It has been 22 months since his doctor diagnosed
the disease.

"I'm lucky. Very lucky," said Conry, 70. "My younger brother
had mesothelioma from the Navy, and he died 12 months to the
day from when he was told he had the disease. Just wasted

For a man told he only had months to live, Conry looked
healthy. He held up an X-ray of his lungs and ran a weathered
finger along the gray shadow of the fast-spreading tumor. He
doesn't need to look at the X-ray. The pain reminds him that
he's sick all the time, he said.

Conry worked on brakes in various Ford garages in St. Louis. He
said he was never told to wear a respirator or to be cautious.
His blue eyes sparkle with anger when he speaks of never being
told about asbestos in brakes.

"Nobody told us then and no one is telling the guys changing
brakes today they had better be careful because they may be
covering themselves with asbestos in the dust from the brakes,"
Conry said. "It's like a secret. A deadly secret."

He prints up his own fliers warning of the dangers and hands
them out at union halls and in gas stations. He admits that few
take it seriously.

"If I can just save one guy, one other human from suffering the
pain that I live with, then it's worth it," he said and paused
for a moment. "But you know, they don't really believe me."

On Thursday morning, Bob Wind was hammering loose a brake drum
from a 1996 Ford Escort at B&B Muffler & Service at Chippewa
Street and Nebraska Avenue. Black dust and grime covered his
clothes and the floor beneath the car. There was no visual way
to tell whether the dust contained asbestos. "You just can't
get away from the dust. It's everywhere: your hair, your nose,
your eyes," Wind said.

He was surprised to learn that some brakes still contained
asbestos. "I thought it was outlawed years ago," said the
mechanic. "I've never seen anyone wear a mask in a garage.

Wind was amazed when a Post-Dispatch photographer showed him a
box of replacement brakes in his own storeroom that said
"Caution. Contains Asbestos Fibers."

"I just can't believe it," he said squinting to read the small
type. Another box said "100 percent asbestos free." But on the
back of the box, in even smaller type, was written: "Product
may contain a chemical fiber know to the state of California to
cause cancer."

Who protects the mechanics?

The EPA says that its regulations direct it to worry about the
safety of home mechanics and students, but that OSHA has the
responsibility for the workers.

An examination by the Post-Dispatch of 31 years of OSHA
inspection records shows that nationwide, fewer then ten gas
stations a year had been cited for asbestos problems.

Richard Fairfax, OSHA's director of enforcement, said in a
telephone interview that OSHA does not have a national program
on asbestos exposure.

"I know we've done sampling. Going through the old inspection
reports I found a couple that I did," Fairfax said. When asked
when his were done, he answered: "A long time ago. In the

In 20 phone calls to various OSHA regional offices and some of
the states designated to do their own OSHA inspections, the
Post-Dispatch found no one who could recall the last time
they'd actually tested for asbestos in a gas station or garage.

"Most of the operations are small businesses and do not have a
lot of employees. Our targeting system is geared at employers
with 40 or more workers," Fairfax said.

Fairfax said he had no opinion "either way" when asked whether
asbestos exposure to brake workers was a health concern.

But the National Institute of Occupational Safety and Health,
OSHA's research arm, has conducted repeated studies over the
years documenting the dangers of asbestos, not only to
mechanics but also to their family members who may be exposed
to asbestos on their work clothes and to others in the garage
area exposed to large amounts of asbestos in the air.

As far back as 1975, NIOSH had many recommendations on
protecting workers, including the posting of warning signs in
garages saying "Breathing Asbestos Dust May Cause Asbestosis or

But many proposals were ignored, said Dr. Richard Lemen, a
former director of NIOSH and an assistant U.S. surgeon general.

"NIOSH cared. EPA cared. It was as if the rest of government
didn't really care about the health of these mechanics and
their families," Lemen said.

"Eliminating EPA guidance is absurd. The risks from asbestos
still exist and unless meaningful actions are taken by the
government, mechanics, and all too often, their family members,
will continue to die."

Last week, five members of various House committees wrote to
the heads of the EPA and OSHA expressing concern that neither
agency "appears to be monitoring the risk of asbestos exposure
to mechanics and ensuring that protections are in place."

The five lawmakers urged the EPA not to withdraw the brake
guidance, saying "it would mislead the public by conveying the
false impression that asbestos exposure from brake repair work
was no longer a risk."

Other public health experts shared their views.

"In making this move on EPA, the law firm seeks to justify
corporate suppression of warnings in the past with government
suppression of warnings today," said Dr. Barry Castleman, a
national authority on asbestos and health issues. "The loser in
this gambit is the public."

Post-Dispatch photographer Andrew Cutraro assisted in the
reporting of this story.

Andrew Schneider,, Phone: