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Death in the Sandbox

by David Corn

William Kitchen is obsessed with a particularly unsettling image: thousands of children playing in sandboxes that could be deadly. One evening in 1987 Kitchen, a 37-year-old construction worker and head of the school board in Johnstown, a small town in upstate New York, attended an open house at the Jansen Avenue elementary school. While walking down a corridor, Kitchen passed a classroom full of what looked like smoke. He peered in and saw no fire, just a boy in a sandbox in the corner of the room. Every time the child shoveled some sand into a pail, a cloud of white dust rose up. The room was covered with this fine white dust, and the first thing that came to Kitchen's mind was asbestos. "I immediately dismissed that," he recalls. "There's no way in this day and age in children's play sand that there can be asbestos."

Kitchen was wrong. A few weeks later he came across a newspaper article reporting that Dr. Jerrold Abraham, a pathologist at the State University of New York in Syracuse, had discovered asbestos fibers in the same type of sand present in the classroom. Kitchen sent Abraham a sample of the dust he had found, and Abraham detected asbestos fibers in it as well. Shortly before this, Dr. Mark Germine, a New Jersey geologist and physician, had found tremolite asbestos in Kiddies Fun Sand, which was made from crushed limestone. Most play sand comes from quarries, not beaches; tremolite is a mineral present at some quarries and mines. Germine petitioned the Consumer Product Safety Commission to ban products that are more than .01 percent tremolite, including certain play sands, consumer gravel, and lawn and garden limestone. There was a burst of media alerts. Could play sand really be a health threat? It was up to the commission to decide.

Kitchen expected the agency to protect kids. Asbestos is a carcinogen that causes asbestosis and other serious diseases. And how important is the play sand market? But Kitchen didn't realize that he was about to become part of a larger controversy, in which big bucks are at stake. He would also discover that in Washington the regulatory process is highly intricate and legalistic, charged with politics, confounded with conflicting and complicated science, influenced by corporations, and quite capable of overlooking health and safety risks to thousands, maybe millions, of citizens -- in the case of play sand, to children.

The commission said play sand was safe. In 1987 it paid outside consultants to test samples of certain brands of play sand. One study found tremolite asbestos fibers in the sand. Another study also detected tremolite but maintained these fibers were only "cleavage fragments" -- small chips created during the mining and milling process -- of a supposedly non-asbestos form of tremolite. (Asbestos is not a specific mineral but rather a collective term given to a group of similar minerals that share certain traits.) Relying on the second set of findings, the commission in 1988 concluded there was no asbestos in play sand and, thus, no reason to regulate.

Kitchen could hardly believe it. The manufacturers of the two brands of sand found to contain asbestos by Abraham and Germine voluntarily pulled their products off the market. But children still could be kicking up dust in sandboxes full of the material; as late as last fall Kitchen bought a bag of one of these brands, which had been renamed and which carried, on the back in small print, the warning "Do not breathe dust. Prolonged inhalation of excessive dust may be harmful to the lungs." Moreover, there is no regulation to prevent the marketing of other brands that might be tainted. These possibilities have spurred Kitchen, a former organizer for Acorn and the National Welfare Rights Organization, to wage a one-man crusade against the Consumer Product Safety Commission. This campaign has cost him tens of thousands of dollars for photocopying, travel and telephone bills, and in deferred income, as he has chased after politicians and journalists, hoping someone will challenge the commission. And he has found himself confronting large corporate interests -- such as companies that mine talc and produce crushed stone, both of which can contain tremolite -- for which the commission's decision was quite profitable.

Those businesses have been fighting to remove certain forms of three asbestos-like minerals -- tremolite, anthophyllite and actinolite, collectively known as AT&A -- from the tough asbestos standard established by the Occupational Safety and Health Administration (OSHA) in 1972. A leader in this effort is R.T. Vanderbilt, a Connecticut-based firm that mines and produces tremolitic talc, which is used in a host of manufacturing processes, for tires, paint, plastic, ceramics and shingles. The National Institute of Occupational Safety and Health found a high incidence of asbestos-related diseases, including lung cancer, among talc miners and millers working at a Vanderbilt facility in upstate New York. A group of talc miners and miners' widows is now suing Vanderbilt and other firms for nearly $200 million, claiming that miners contracted asbestosis while working the mines. But the company, challenging the NIOSH findings, maintains its workers have not contracted asbestos-related diseases and that its products should not be regulated as tightly as asbestos.

The essence of the company's case against regulation, and that of its industry allies, lies in the same semantic argument adopted by the Consumer Product Safety Commission regarding play sand: respirable AT&A fibers can come from two types of minerals, asbestiform and non-asbestiform. That is, AT&A minerals grow in two different ways: as fibers (asbestiform) or as broader chunks (non-asbestiform). But particles of the non-asbestiform variety, when mined or milled, can break up into microscopic pieces that are fiber-shaped. Such non-asbestiform AT&A fibers, the industry argument goes, are not really asbestos; therefore, they need not be controlled as strictly. Yet in other key physical characteristics these non-asbestiform fibers are strikingly similar to the asbestiform fibers that cause asbestosis and other lung diseases.

"This non-asbestiform business is just a word game," says Dr. Philip Landrigan, a professor of environmental medicine and pediatrics at Mt. Sinai School of Medicine in New York City and a harsh critic of the commission's ruling on play sand. "The people trying to protect a particular product will come up with sophisticated arguments about when a fiber is not a fiber. To the public health people, the science is straightforward."

Much is at stake for R.T. Vanderbilt, which says that its talc contains only non-asbestiform tremolite and anthophyllite, and other businesses that make products with AT&A. An internal 1988 Vanderbilt memorandum noted, "The prospect of labelling our products as asbestos . . . would lead to a rapid loss of our business." Much is also at stake for employees. According to NIOSH, more than 1 million workers at 67,678 sites might be exposed to talc, tremolite and anthophyllite.

The talc and crushed stone industries have battled OSHA's attempt to apply the asbestos standard to non-asbestiform AT&A for years. For most of that time, they had little success, as OSHA based its decisions on studies that suggest that AT&A fibers -- even if they have a non-asbestiform origin -- may cause asbestos-related disease. A desperate Vanderbilt, according to a letter written to OSHA by NIOSH director Dr. J. Donald Miller, even tried to influence a NIOSH study on the mortality of talc miners at its facility.

After OSHA in 1983 proposed to lower the permissible exposure level of asbestos, including non-asbestiform AT&A, the company mounted an aggressive lobbying campaign aimed at both the Labor Department and the Office of Management and Budget. (One lobbyist was Michelle Laxalt, daughter of then-Senator Paul Laxalt.) When OSHA would not back down, Vanderbilt, the National Stone Association and the Vulcan Materials Company took the matter to federal court. OSHA gave in and granted a stay on implementing the standard as it applies to non-asbestiform AT&A; it also agreed to reconsider its regulation of those substances under the asbestos standard.

Last February, following years of internal review, OSHA proposed to remove non-asbestiform AT&A from the asbestos standard. In May it held five days of public hearings in a small auditorium in the Washington headquarters of the Labor Department, at which any interested party could comment on the proposal. Bill Kitchen was one such party. He drove down in his pickup truck to testify. He figured that if OSHA blessed the industry's attempt to deregulate non-asbestiform AT&A, then the Consumer Product Safety Commission ruling on play sand would be validated. But if OSHA beat back industry's push, then the commission's lack of action on play sand would seem even odder.

As an outraged citizen, Kitchen was a distinct minority in the lineup of high-priced lawyers, officials of affected businesses, doctors, public health officials, and industry-hired mineralogists. Vanderbilt, the American Mining Congress, the National Aggregates Association, the National Ready Mixed Concrete Association and the National Stone Association, the last representing 400 companies with 64,000 employees, staged a full-court press. Lawyers from blue-chip D.C. firms introduced a number of scientists and experts who presented a barrage of technical information to justify the industry contention that these minerals should not be included in the asbestos standard. The most articulate industry advocates were mineralogists, not medical experts. These included Art Langer, a geologist and mineralogist at Brooklyn College. It was upon Langer's report that the Consumer Product Safety Commission had relied to certify play sand as safe for kids. Last year Vanderbilt gave Langer $77,000 to study the "biological potential" of asbestiform and non-asbestiform minerals.

At the hearing the business groups argued there is no solid evidence that exposure to non-asbestiform minerals presents a significant threat. They complained about the cost of regulation. William Miller, chief of regulatory projects coordination at the Bureau of Mines, laid out industry's nightmare. If the regulation is not removed, he said, the talc industry could lose $12 million in sales, one major talc producer would be put out of business and 7 percent of crushed-stone producers might have to close their doors. Anxious about an OSHA statement indicating it might regulate these minerals under a separate rule -- which, if established, probably would not be as tough as the asbestos standard -- an official of the National Stone Association declared, "N.S.A. does not believe OSHA would be justified in regulating non-asbestiform AT&A minerals in any environment under any circumstances."

For someone unversed in the fine points of mineralogy and pathology, it would be easy to get lost in the swirl of scientific technicalities. But a distinct pattern emerged at the hearing: The medical experts who were not in the pay of industry dismissed out of hand the argument that non-asbestiform AT&A should be removed from the asbestos standard. Dr. Richard Lemen, assistant director of NIOSH, testified that doing so would pose "serious health risks for exposed workers" and that cleavage fragments of these minerals "should be considered as hazardous as fibers from the asbestiform minerals." After the hearing Lemen explained, "The bottom line is that all fibers, if they are breathable and are durable within the lung [meaning they don't dissolve], have the potential of causing disease. We don't feel it matters where a fiber is born."

Dr. Abraham, the pathologist who discovered tremolite asbestos in play sand and who specializes in occupational lung disease, had many angry words. He has studied lung samples from a few hundred diseased talc miners who worked in upstate New York sites, including that of R.T. Vanderbilt, and has discovered a high number of cases of asbestosis and mesothelioma, a very rare and highly lethal lung cancer. Abraham had nothing but contempt for the industry's argument: "The miners are inhaling fibers that are resulting in disease that's indistinguishable from asbestos-related disease, and I don't really care -- if I can use that word -- whether you call them asbestos or non-asbestos." Abraham, like Lemen before him, could just as easily have been speaking about tremolite in play sand.

The American Thoracic Society, part of the American Lung Association, noted in a recent report submitted to OSHA that tremolite is a carcinogen and can produce mesothelioma. The study found that tremolite's carcinogenesis is "related to fiber size, shape and durability, rather than to chemical composition." The society furthermore advised, "The prudent public health policy course is to regard appropriately sized tremolite 'fibers' . . . as capable of producing the recognized asbestos-related disease, and they should be regulated accordingly."

After sitting through four days of hearings and hours of industry arguments, Bill Kitchen was a bit agitated. When he had questioned witnesses, as anyone is allowed to do at such hearings, Judge George Fath cut him off if he raised the subject of play sand, explaining that the topic was not pertinent to OSHA's rule-making on AT&A. On the final day, he had his own chance to testify. Kitchen has learned the science. He cited a number of relevant academic studies. But he also engaged in some very plain talk: "Should we . . . be listening to the mineralogists or be listening to the medical experts, particularly when a number of mineralogists have very strong financial ties to the companies that are going to be regulated under these standards?" Fath did not at this point prevent him from referring to play sand, so Kitchen warned, "If this proposal goes through as it is, that play sand can continue to be marketed, presenting a terrible risk to very young children."

Even OSHA, in its sixteen-page, fine-print notice of its proposed rule change, published in the Federal Register, acknowledged that studies indicate there is a potential health threat from workplace exposure to non-asbestiform AT&A and rejected the claim that the mineralogical origins of fibers are related to their health effects. But OSHA still maintained the available evidence is not sufficient for it to regulate non-asbestiform AT&A under the asbestos standard. To do so there must be "substantial evidence" of a "significant risk" -- a criterion that leaves much to OSHA's discretion. To participants on both sides of the debate, though, the message of the notice is clear: The mid-level professionals at OSHA, who crammed the notice with information about the risks of non-asbestiform AT&A, believe the standard should remain in place; the political appointees who make the final policy decisions are sympathetic to the cries of business.

One statement in the notice was especially startling: "OSHA believes that CPSC's conclusion [regarding play sand] that there is no evidence of a carcinogenic hazard did not give adequate consideration to the relevant evidence and is overstated." It's a comment that fully justifies Kitchen's zealotry. Its meaning is obvious. No one should take comfort in the Consumer Product Safety Commission's judgment on play sand.

OSHA will now spend at least a year deciding what to do about non-asbestiform AT&A. The consumer safety commission is keeping a close watch on OSHA's actions, according to an internal memorandum. It has also proposed that these substances be tested in animals to see if non-asbestiform fibers are hazardous. That testing is not scheduled to be completed until 1995. In the meantime, if you call the commission's 800 hotline and request information on play sand, a recording of a calm-sounding woman will tell you that the commission "has found no evidence of an asbestos hazard from play sand."

Ultimately, the question in the cases of both play sand and AT&A -- as with most regulation -- is, Who must bear the burden of uncertainty, the companies that make the products, or the workers and consumers who suffer if the dire predictions come true? For decades, industry and government disregarded the dangers of asbestos, often with the familiar excuse that the evidence was not conclusive.

"Shouldn't the public health officials and what they say be given the benefit of the doubt when it comes to the health of children or mine workers?" Kitchen asks. Regulation is a complicated business, but the principle of erring in the direction of safety should be the rule, especially when the enemy is a debilitating disease that can take decades to develop. Waiting for proof beyond any doubt is akin to experimenting on humans. The law even allows OSHA to err "on the side of overprotection rather than underprotection." But that's not a privilege OSHA or the Consumer Product Safety Commission seems willing to use in these cases. At one point in the hearings, Judge Fath interrupted Kitchen, saying, "Well, Mr. Kitchen, you don't understand that one of the courses taught in law school is how to complicate things." After years of struggling -- so far, unsuccessfully -- for no more than simple prudence, Kitchen replied sadly, "No, I think I do understand."