How We Got Here -- Part 2:
Who Will Take the
Responsibility for PCBs?
by Peter Montague, Ph.D.
from Rachel's Hazardous Waste News #329
The story of PCBs is a morality play for our time.
PCBs (polychlorinated biphenyls) were discovered during the 19th century,
when petroleum was still more of a curiosity than a recognized foundation
for the world's most powerful civilization. As the automobile came into
wider use during this century (Henry Ford invented the assembly line around
1910), the demand for gasoline grew. As gasoline was extracted from crude
oil, great quantities of other chemicals, like benzene, were left over.
Chemists started playing around with these chemicals, to see if something
useful could be made from smelly by-products, like benzene.
If you heat benzene under the right conditions, you can glue two benzene
rings together, creating diphenyl. If you then expose the diphenyl to chlorine
gas under the right conditions, you can create chlorinated diphenyls, or
biphenyls as we call them today. Adding more or less chlorine gives compounds
with differing properties, and thus PCBs (polychlorinated biphenyls, all
75 of them) came into being. They aren't soluble in water, they don't burn,
the don't conduct electricity, they do not degrade during use, and they
conduct heat very well--viola! An excellent candidate for a variety of uses
in the burgeoning fields of electric power equipment and electronics.
By 1914 enough PCBs had already escaped into the environment to leave
measurable amounts in the feathers of birds held in museums today. [1]
By the mid-1930s, as we saw earlier (RHWN #327) Monsanto was producing
PCBs commercially and PCBs had created a public health problem sufficient
in size to attract academic researchers, the U.S. Public Health Service,
and several large industrial producers and users of PCBs.
In 1936 a senior official with the U.S., Public Health Service described
a wife and child, both of whom had developed chloracne, a combination of
blackheads and "pustules," merely from contact with a worker's
clothes. The same official wrote, "In addition to these skin lesions,
symptoms of systemic poisoning have occurred among workers inhaling these
fumes." [2]
By 1947, E.C. Barnes of Westinghouse's medical department wrote, in an
internal company memo, that long-term exposure to PCB fumes "may produce
internal bodily injury which may be disabling or could be fatal." [3]
By 1959, the assistant director of Monsanto's Medical Department would
write to the Administrator of Industrial Hygiene at Westinghouse saying,
"...sufficient exposure, whether by inhalation of vapors or skin contact,
can result in chloracne which I think we must assume could be an indication
of a more systemic injury if the exposure were allowed to continue."
[4]
In 1968, when 1300 residents of Kyushu, Japan, fell ill after eating
rice contaminated with PCBs, the world's public health establishment woke
up from a long sleep and began to examine PCBs, which by this time were
everywhere.
In late 1971, a group of Westinghouse staff met to discuss PCBs and they
noted that PCBs concentrate in the food chain. A memo summarizing the meeting
said, "It was generally concluded that... there is sufficient evidence
that pcbs can be deleterious to the health of animal and human life and
that the risks of ignoring the evidence that does exist was [sic] inappropriate
for Westinghouse." [5] Yet the 1971 memo
recommended continued use of PCBs.
Nearly 20 years later, in the late 1980s, researchers began to find that
workers exposed to PCBs were dying of skin cancer and, perhaps, of brain
cancer. Westinghouse and Monsanto maintain that they always informed their
workers completely about the hazards of PCBs, but during the 1990s, workers
have begun to sue for damages, saying the companies misled them.
Recently in a court in Travis County, Texas, Westinghouse released a
22-page memo that bears no date, but which company officials say was written
by a Westinghouse staff lawyer in 1987 or 1988. [6]
In the memo, the Westinghouse lawyer describes extensive paper and microfilm
records held by the Westinghouse Industrial Hygiene Department: "The
majority of the documents in Industrial Hygiene's files are potential 'smoking
gun' documents," the memo says. The memo goes on, "The files are
filled with documentation which critiques and criticizes, from an industrial
hygiene perspective, Westinghouse manufacturing and non-manufacturing operations.
This documentation often times points out deficiencies in Westinghouse operations
and suggests recommendations to correct these deficiencies. Industrial Hygiene's
files contain information which details the various chemical substances
used at Westinghouse sites over the years and often times the inadequacies
in Westinghouse's use and handling of the substances. The files contain
many years of employee test results, some of them unfavorable," the
memo says. [7]
The memo says that Westinghouse executives must ask certain questions
before deciding to keep or destroy the smoking gun records. The first question
is, "What are the chances of litigation? Is it pending or imminent?"
The second question is, "In the case of litigation, which party would
have the burden of proof?"
The memo then says, "We recommend that all such files generated
prior to 1974 be discarded.... In our opinion, the risks of keeping these
files on the whole substantially exceed the advantages of maintaining the
records...."
Westinghouse officials deny that the memo was acted upon. They say they
still have all the company's files intact. However, in a lawsuit against
Westinghouse by Nevada Power and Light (NP&L), Westinghouse did not
produce documents, such as correspondence between Westinghouse and Monsanto,
requested by NP&L in a "discovery" proceeding. Monsanto, on
the other hand, did produce correspondence with Westinghouse officials.
[4] NP&L is suing Westinghouse, GE and Monsanto
for $48.5 million in compensatory damages for costs the utility says it
incurred because of PCBs in electric power equipment.
Furthermore, in sworn testimony in the NP&L case, three Westinghouse
employees or former employees described how files that they maintained about
PCBs were taken from them by members of Westinghouse legal staff in the
1980s and never returned to them.
It is not clear why Westinghouse handed over the "smoking gun"
memo to opposing counsel in the Texas suit. In any case, Westinghouse attorneys
tried to have the document declared "privileged" so that it would
remain under wraps. On February 9, 1993, Texas Judge Paul R. Davis ruled
against Westinghouse, saying the memo "falls within the crime/fraud
exemption to privileged documents" under Texas law because, the Judge
said, the memo was "prepared, and describe[s] a plan, to commit fraud
on the courts of this nation." Westinghouse denies fraudulent intention,
but destroying documents that might be needed in foreseeable litigation
is forbidden under U.S. law.
Westinghouse will have many opportunities to redeem its good name in
the next few years. If company officials still have all their company records
dating back to the 1930s, they will be able to produce relevant documents
during "discovery" proceedings in dozens of lawsuits now impending
or already filed. More than a thousand individuals have already filed lawsuits
against Westinghouse, seeking compensation for alleged damages from workplace
exposures.
During this '90s, the PCB morality play will move through the courts,
where Chapter 11 bankruptcy may be the only way out for the purveyors of
PCBs.
Some may see in this history the malevolent machinations of corporate
criminals. But others may find in this story well-meaning individuals trapped
in circumstances they believe forced them to make choices that they, as
individuals, could never condone.
In RHWN #327 we heard General Electric's F.R. Kaimer describe the HUMAN
reaction of GE executives to the disfigurement and pain of GE workers exposed
to PCBs: "[W]e had 50 other men in very bad condition as far as the
acne was concerned. The first reaction that several of our executives had
was to throw it out--get it out of our plant. They didn't want anything
like that for treating wire. But that was easily said but not so easily
done. We might just as well have thrown our business to the four winds and
said, 'We'll close up,' because there was no substitute and there is none
today in spite of all the efforts we have made through our own research
laboratories to find one." [7]
In the end, it does not matter what motivated the actors in our PCB story.
Whether they were motivated by good or evil, the necessary remedy is the
same.
As a society, and as a species, we cannot survive the launching of many
more families of chemicals like PCBs or CFCs. Yet the corporate form of
organization shields those who launch such chemicals, preventing them AS
INDIVIDUALS from feeling the consequences of their actions. The way out
of this thicket is to give back liability to all individuals, removing the
corporate shield that prevents individuals from feeling the consequences
of their own actions. Through reform of the corporate charter, we can return
to everyone their essential humanness, their responsibility for their own
choices in their own lives.
Endnotes
[1] Robert Risebrough and Virginia
Brodine, "More Letters in the Wind," in Sheldon Novick and Dorothy
Cottrell, editors, OUR WORLD IN PERIL: AN ENVIRONMENT REVIEW (Greenwich,
Conn.: Fawcett, 1971), pgs. 243-255.
[2] E.C. Barnes quoted in Michael
Schroeder, "Did Westinghouse Keep Mum on PCBs?" BUSINESS WEEK
August 12, 1991, pgs. 68-70.
[3] Letter from Elmer P. Wheeler
of Monsanto, to H. Wilbur Speicher of Westinghouse, October 23, 1959.
[4] Memo from G.W. Wiener, Research
Director, Power Systems, Westinghouse, titled "Minutes of pcb status,"
dated December 28, 1971.
[5] Stuart Mieher, "Westinghouse
Lawyer Urged in '88 Note That Toxic-Safety Records Be Destroyed." WALL
STREET JOURNAL February 26, 1993, pg. A-4.
[6] Undated "smoking gun"
memo by Westinghouse attorney Jeffrey Bair and C.W. Bickerstaff, then Manager
of Corporate Industrial Hygiene for Westinghouse.
[7] Cecil K. Drinker and others,
"The Problem of Possible Systemic Effects From Certain Chlorinated
Hydrocarbons," THE JOURNAL OF INDUSTRIAL HYGIENE AND TOXICOLOGY Vol.
19 (September, 1937), pgs. 283-311.
Descriptor terms: pcbs; polychlorinated biphenyls; benzene;
monsanto; u.s. public health service; westinghouse; chloracne; kyushu; japan;
tx; nevada power & light; np&l; smoking gun memo; fraud; judge paul
r. davis; general electric; f.r. kaimer; petroleum; chlorinated hydrocarbons;
RACHEL'S HAZARDOUS WASTE NEWS #329
---March 18, 1993---
News and resources for environmental justice.
------
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Fax (410) 263-8944; Internet: erf@igc.apc.org
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