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#329 - How We Got Here -- Part 2: Who Will Take Responsibility For PCBs, 17-Mar-1993

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 condi-tion 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 human-ness, their
responsibility for their own choices in their own lives.

--Peter Montague

=====

[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; benzene; monsanto; phs; westinghouse;
chloracne; kyushu, japan; japan; tx; nevada power & light; fraud; ge;
petroleum; chlorinated hydrocarbons;