20 October 22
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That is all that remains between today and Election Day. Voting has already begun in many parts of the country.
Three weeks.
For months, polls have shown race after race as tight, differences of a few percentage points here and there, within margins of error. But recently, those polls seem to suggest Republican momentum. How much? How far will it go? How real is it? We’ve been burned by polling errors in the past. Are they off again now? If so, in which direction? The spectrum of possible outcomes is almost as broad as the country itself.
Three weeks. And America’s future is on the ballot.
All elections are about the future of the country: Who will be granted the keys to power by the public? But not all elections are about the survival of American democracy itself. This one is. During the Republican primary season, candidates echoing the dangerous lies of the party’s leader, Donald Trump, about “stolen elections” and “voter fraud” won many races.
An anti-democratic current now subsumes the Republican Party. At the state level in particular, election-denying governors and secretaries of state could easily wreak havoc and undermine the fairness of future elections. Will they emerge victorious?
For many Democrats, independents, and even Republicans, an existential dread looms over these elections that drowns out any horse race analysis and the idea that this should be a “normal” election driven by issues like the economy. There is a deep and abiding fear, one that is warranted, that America’s system of governance is at a perilous crossroads. But how much has this apprehension affected the electorate at large?
The Republicans enter this election with several structural advantages. Perhaps the biggest one is that they are the party out of power in the House, Senate, and White House (it’s a different story for governors and state legislatures). Parties out of power in Washington tend to win in midterm elections, often big. Over the decades, it hasn’t mattered whether it was Republicans or Democrats in this position — both parties have won. And it has happened so frequently that it’s now almost taken as a given starting point for election analysis. But it doesn’t always happen. Will this be one of those years?
Then there’s the matter of the economy. And here again, the polling suggests it is the biggest concern among voters. The United States might be faring better than other countries in a global inflationary environment, but that is small comfort for those who are struggling with spiking bills for groceries, goods and services, and particularly gas. It’s not clear what Republicans’ proposed solutions would be (or even that they have any), but in election after election, voters have shown that they tend to be guided by their pocketbooks and punish or reward the party in power. In the current environment, sticker shock is hurting working families and people on fixed incomes.
Another Republican advantage is rooted in the way political power is distributed in the American system. Gerrymandering districts is a bipartisan affair, but those who analyze the drawing of electoral district maps tend to give Republicans the edge after the last census. It wasn’t as extreme as Democrats had feared, but a couple of bad breaks from the courts and state legislatures mean the Democrats start at a disadvantage, especially in their bid to keep the House.
Finally, there is the specter of Trump. We have seen the former president take over the Republican Party and infuse a fervor into millions of voters who enthusiastically bask in his cult of personality. They swelled voting ranks when he was on the ballot in 2016 and 2020. Those who understand Trump to be a dangerous autocrat don’t like it, but Trump still has a wide following fueled by a media and an online ecosystem where American problems are blamed exclusively on Democrats. Will these voters show up again in 2022?
Despite Republican momentum, this fall’s races still show some signs of being closer than a normal midterm with a struggling economy would indicate. For starters, while Trump is popular with his base, he is also despised by tens of millions of voters. After all, he lost reelection, which is a bit unusual for modern American presidents.
Trump has injected himself into the 2022 election, to the dismay of many Republican Party leaders. He refuses to cede the spotlight, especially as he worries about his pending legal woes. So while most former presidents tend to play a muted role — especially those who lost after a single term — Trump is everywhere. Will his presence remind voters who don’t like him — or even hate him — that there’s an election in which they should be voting?
Trump has also played kingmaker in anointing Republican candidates, especially in Senate races. This involvement has led to nominees who are underperforming in the polls considering GOP advantages, including in Georgia, Pennsylvania, and Ohio. The party can still win these races, and might even be favored, but the Democrats have a chance.
Another hope that Democrats have is anger, and anger can be a powerful motivator in getting your supporters to vote.
Perhaps the event that has done the most to shape these elections and give Democrats hope is the U.S. Supreme Court's decision to overturn Roe. By casting aside decades of precedent and wiping away fundamental rights that Americans had come to take for granted, the Republican-appointed justices on the court gave strong evidence of what many had warned but too few had heeded — that they are politicians in black robes using legal decisions to rewrite American society in ways they never could accomplish through legislative means.
They are acting without restraint and will continue to do so unless reined in by the other branches of government. The unpopularity of many Republican core positions is now out there for everyone to see, with a visceral impact that can be measured in the fraught experiences of real people. The fury generated by this ruling could turn the tide for Democrats in several key races.
For all who hoped Trump’s 2020 defeat would put the country on a more sane and less precarious course, the last two years have proven deeply disappointing. The January 6 committee has highlighted how close America came to a full-blown constitutional crisis that could have shattered our democratic institutions. That danger, as noted above regarding election-denying Republicans running for office, has spread like a pandemic of autocracy. Those who care about our democracy and the rule of law — and that includes many independents and traditional Republicans — are rightly livid and very worried. Will enough vote accordingly?
There are many other factors at play in addition to the ones listed above. They swirl around one another, but ultimately we are required to vote for a person, not a list of issues. And votes count only if they are cast. So it is every qualified citizen’s duty to vote, and to encourage others to do so.
Who will turn out? Who is persuadable? Who will win?
We will know a lot more in three weeks, although with the races this close, we should prepare ourselves that final results could take longer.
What we know right now is that the future of American democracy is on the ballot. Our core principles, our institutions, and our traditions are all at stake. Make no mistake: This country will look very different depending on who wins this election.
The reason why we hold elections is that voting matters. We do not decide our leaders by polls. Right now, there does seem to be a shift in the winds favoring Republicans. But mobilizing voters, getting people to the polls, making sure your side votes, are the actions that will determine the outcome. And that outcome, no matter what you are reading about or feeling today, has yet to be written.
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War crime prosecutor's team member speaks on the phone next to buildings that were destroyed by Russian shelling, amid Russia's invasion of Ukraine, in Borodyanka, Kyiv region, Ukraine, April 7, 2022. (photo: Zohra Bensemra/Reuters)
Victims of sexual assault in Russia-occupied areas at the start of the war were aged between four and 80, commission says.
In a report published on Tuesday, the three members of the Independent International Commission of Inquiry on Ukraine said they had documented patterns of summary executions, unlawful confinement, torture, ill-treatment, rape and other sexual violence committed in areas occupied by Russian armed forces.
In one of the most disturbing examples, the commission said a four-year-old was allegedly forced to perform oral sex on a Russian soldier in the Kyiv region in March.
The report includes several other references to reported rape cases, with victims said to be aged from four to 80 years old.
Al Jazeera was unable to independently verify the claims. Ukrainian officials, rights groups and the UN have previously said Moscow is using sexual assault as a war tactic.
“Perpetrators raped the women and girls in their homes or took them and raped them in unoccupied dwellings. In most cases, these acts also amount to torture and cruel or inhumane treatment for the victims and for relatives who were forced to watch.
“Other incidents of sexual violence were also documented against women, men, and girls,” the report said.
Kyiv’s forces also committed alleged war crimes, the commission said, including two cases of people who were out of action who were shot, wounded or tortured.
After the war began on February 24, Russian forces indiscriminately shelled areas they were trying to capture and “attacked civilians trying to flee”, the report said.
“The impact of these violations on the civilian population in Ukraine is immense. The loss of lives is in the thousands. The destruction of infrastructure is devastating,” Erik Mose, the chair of the commission, said in a statement.
The report covered events in Ukraine’s Kyiv, Chernihiv, Kharkiv and Sumy regions in late February and March 2022.
EU chief also accuses Russia of ‘war crimes’
The four northern regions the UN focused on have since been fully recaptured by Ukraine, after Russia’s assault on Kyiv failed.
After liberating areas near the capital, Ukrainian troops found bodies in the streets and mass burial sites of those allegedly killed under Russian occupation.
Moscow denies deliberately targeting civilians, though it has flattened villages, towns and cities across Ukraine during what it initially called a “special military operation” to disarm its neighbour. Kyiv has said it will punish abuses committed by its own forces but believes the number of such incidents is small.
In further condemnation of alleged Russian abuses, the European Commission’s president on Wednesday decried recent missile and drone attacks on Ukrainian power stations and other infrastructure.
“The international order is very clear. These are war crimes,” Ursula von der Leyen told the European Parliament. “Targeted attacks on civilian infrastructure with the clear aim to cut off men, women, children of water, electricity and heating with the winter coming, these are acts of pure terror and we have to call it as such.”
OxyChem's Niagara Falls facility is the longest-standing asbestos-reliant chlorine plant in America. (photo: Rich-Joseph Facun/ProPublica)
They could linger there for decades. Then, one day, he might develop asbestosis, a chronic disease that makes the lungs harden, or mesothelioma, a vicious cancer that ends the lives of most who have it within a few years.
By then, in the early 1990s, the dangers of asbestos were already irrefutable. The United States had prohibited its use in pipe insulation and branded it so risky that remediators had to wear hazmat suits to remove it. But unlike dozens of other countries that banned the potent carcinogen outright, the United States never did.
To this day, the U.S. allows hundreds of tons of asbestos to flow in each year from Brazil, primarily for the benefit of two major chemical companies, OxyChem and Olin Corp. The companies say asbestos is integral to chlorine production at several aging plants and have made a compelling argument to keep it legal: Unlike in the horrific tales of the past, their current protocols for handling asbestos are so stringent that workers face little threat of exposure.
But at OxyChem's plant in Niagara Falls, New York, where Saenz worked for nearly three decades, the reality was far different, more than a dozen former workers told ProPublica. There, they said, asbestos dust hung in the air, collected on the beams and light fixtures and built up until it was inches thick. Workers tramped in and out of it all day, often without protective suits or masks, and carried it around on their coveralls and boots.
They implored the plant's managers to address the conditions, they said, but the dangers remained until the plant closed in late 2021 for unrelated reasons.
It was hard for Saenz to reconcile the science that he understood — and that he believed OxyChem and government leaders understood — with what he saw at the plant every day. He did his best not to inhale the asbestos, but after a short time, he came to believe there was no way the killer substance was not already inside him, waiting, perhaps 30 or 40 or even 50 years, to strike.
Now, too late for Saenz, the Environmental Protection Agency appears poised to finally outlaw asbestos in a test case with huge implications. If the agency fails to ban a substance so widely established as harmful, scientists and public health experts argue, it would raise serious doubts about the EPA's ability to protect the public from any toxic chemicals.
To fight the proposed ban, the chemical companies have returned to a well-worn strategy and marshaled political heavyweights, including the attorneys general of 12 Republican-led states who say it would place a "heavy and unreasonable burden" on industry.
Lost in the battle is the story of what happened in the decades during which the U.S. failed to act. It's not just a tale of workers in hardscrabble company towns who were sacrificed to the bottom line of industry, but one of federal agencies cowed again and again by the well-financed lawyers and lobbyists of the companies they are supposed to oversee.
It's the quintessential story of American chemical regulation.
For decades, the EPA and Congress accepted the chlorine companies' argument that asbestos workers were safe enough, and regulators left the carcinogen on the list of dangerous chemicals that other countries ban but the U.S. still allows. The Occupational Safety and Health Administration even let OxyChem and Olin into a special program that limited the frequency of inspections at many of their plants.
Along the way, the two companies proved that they didn't need asbestos to make chlorine: They built some modern facilities elsewhere that didn't use it. But they balked at the cost of upgrading the older facilities where it was still in use — even as they earned billions of dollars from chemical sales and raked in record profits this year.
OxyChem, owned by one of the country's largest energy companies, Occidental Petroleum, declined requests for an interview. After ProPublica sent a summary of its reporting, company officials said the accounts from the Niagara Falls plant were "inaccurate" but declined to say what specifically was incorrect. In a statement, the company said it complies with federal regulations on asbestos and that workers who handle it are "trained, work in restricted areas of our plant, protected by personal protective equipment and are offered annual medical examinations."
The company also said it authorizes employees to stop work if they feel unsafe. "The health and safety of every plant worker and the people in our surrounding communities is our top priority," the company said.
Olin did not respond to calls and emails sent over the course of a month.
It has been easy to minimize the toll asbestos takes on workers. Workers' compensation cases are often confidential, and employees may fear speaking out and jeopardizing their livelihood. ProPublica reporters, however, found a unique opportunity to explore what it was really like to work at an asbestos-reliant plant after America's longest-standing facility, the one run by OxyChem in Niagara Falls, shuttered last November.
With their jobs no longer on the line, Saenz and 17 other former workers, some with institutional knowledge dating back to the 1960s and others with memories less than a year old, said they felt free to talk. They agreed to hours of interviews and dug through their homes for documentation to reconstruct their work lives in the decades they spent at the plant.
What they recounted — ever-present asbestos dust with scant protection — stunned six experts in industrial hygiene and occupational health who were consulted by ProPublica.
"Totally unacceptable," said Rachael Jones, professor and chair of the Environmental Health Sciences Department at the University of California, Los Angeles.
"Fraught with danger," said Dr. Philip Landrigan, a public health physician trained in occupational medicine and epidemiology who leads Boston College's program for Global Public Health and the Common Good.
"It sounds like something that maybe would happen in the 1940s or the 1950s," said Celeste Monforton, a lecturer in public health at Texas State University who studies occupational health and safety practices.
"It's just so counter to everything that they put in the record about using [asbestos] safely," Monforton said.
A good factory job
For more than a century, OxyChem's plant on the Niagara River, just 3 miles upstream from the world-renowned falls, was a small city unto itself. It buzzed with workers day and night, and, in its heyday, had its own cafeteria, credit union and health clinic. A job there carried a certain cachet. Workers could make six figures, even without college degrees.
But the plant had a dark legacy. Its previous owner, Hooker Chemical, had buried toxic waste in an unfinished aqueduct called Love Canal, then turned the property over to the city for development in the 1950s. After contaminated groundwater sickened the people who lived there, it became known as one of the worst environmental disasters in U.S. history.
Unlike many of the other workers who grew up in the shadow of the plant, following their fathers and uncles into jobs there, Saenz was originally from Northern California. But he fell in love with a woman from Niagara Falls and moved there to start a family with her, working at a hotel, delivering flowers and tending bar — anything to put food on the table, he said — before deciding OxyChem was the job he wanted to stay in.
He was hired in 1989 and soon after got a crash course in chemistry. A jolt of electricity, he learned, could turn a tank of salt water into three substances: chlorine, caustic soda and hydrogen. The chlorine could be sold for disinfecting water, the caustic soda for making paper, soap and aspirin. There was, however, a real danger: If the chemicals mixed, the tank could turn into a bomb. So each tank had a thick, metal screen inside to keep the chemicals apart.
The screen was coated with a layer of impenetrable asbestos. OxyChem used chrysotile, or white asbestos, the most common type. It showed up on trains in oversized bags that looked like pillows stuffed with down feathers. At OxyChem, there were about 200 tanks, called cells, each the size of a dining room table and containing a metal screen.
When a screen needed to be recoated, a special team of workers removed it and brought it to the cavernous cell-maintenance building. There, they blasted it with a high-pressure water cannon until the old asbestos fell off. Then, they dipped the clean screen into a wet mixture containing new asbestos and cooked it in an oven until the asbestos hardened. They worked on one or two screens each day.
The asbestos job was one of the most hazardous at the plant, requiring special training. But it also provided a rare benefit. Unlike most positions, which forced workers to take afternoon and midnight shifts, the asbestos job was days only. Saenz, who initially worked in a different department, waited years for an opening on the team, eager to spend more time with his growing family. After his fourth child was born, a spot opened up.
The team was a small fraternity of eight or so men who ate lunch together in a special trailer. Some days, when their shift ended at 2 p.m., they would meet at JD's, a dive bar near the plant. Other days, it was the wing joint down the street or the bar in Terry Cheetham's basement.
Cheetham was the big brother of the group; the guys called him Soupie. Reserved and shaggy-haired, garrulous only with a beer in hand, he'd dropped out of high school after his father's death and gone to work for OxyChem. He wanted to help his mom support their family. Soon after Saenz joined the team, Cheetham tapped him on the shoulder. "We're going for a ride after work," he said. Later, they pulled up outside the local liquor store. As the new guy, Saenz had to carry the keg.
The guys raised their kids together, helped each other's families through difficult times. At the plant, they always had each other's backs. Certain hazards, like fires, were hard to miss. Others, like chlorine leaks, were more subtle. Then, there was the asbestos. As Saenz spent more time on the job, he began noticing just how much of it surrounded him.
'Swimming' in dried asbestos particles
Federal workplace safety standards require keeping asbestos fibers wet to prevent them from going airborne, having workers wear protective equipment and containing the asbestos inside certain areas. OxyChem had rules in place to meet those standards. But protocols failed to match reality at the Niagara Falls plant, according to more than a dozen workers.
Water-blasting the screens was like washing a car with a high-powered hose. Asbestos splattered everywhere. It wasn't a problem when the asbestos was wet. But it would dry overnight, and the next morning, it would be stuck to the ceiling and the walls. Clumps would roll across the floor like tiny tumbleweeds. Floating particles would catch the light when the sun poured in.
There was so much asbestos in the cell-maintenance building that it was impossible to keep it all wet, said Robert Cheff, who worked at the plant from 1981 to 2007. "We were constantly swimming in this stuff."
Workers wore protective gear for certain tasks, like pressure washing and screen dipping. But they went into the building to carry out other tasks without special suits or anything protecting their faces, despite company requirements. One worker said managers enforced those rules. But a dozen others interviewed by ProPublica recalled that the bosses looked the other way. Suiting up was impractical, those workers said. It took time away from the tasks that needed to get done and was uncomfortable, especially on hot days, when the temperature inside could reach 100 degrees.
In the summer, the windows and doors were left open to keep the workers from overheating, allowing asbestos to escape outside. Wet asbestos splashed on their uniforms, coats, helmets and boots. One guy seemed to always have some on his mustache. It would dry and flake off their clothes wherever they went, they said. Saenz remembered walking into safety meetings in the administrative building with asbestos drying on his coveralls. The guys carried so much asbestos into the trailer where they ate lunch and took breaks that it needed to be replaced, former union leaders said.
Their uniforms sat in the laundry, caked with dry asbestos. When the union raised the problem in 2010, managers responded by giving the team its own hamper with a lid to contain the asbestos, said longtime union officer Mike Spacone. Only after union leaders threatened to call federal authorities did the company give the team its own laundry facilities, Spacone said.
On occasion, workers who handled asbestos would leave without showering in the plant's locker room or wear their work clothes home. "My kids played sports," recalled Dave Helbig, an employee from 1980 through 2021. "Sometimes I had to leave to get to their games."
The company would have known employees were being exposed; workers with a high risk of exposure sometimes clipped a small monitor to their bodies to measure the amount of asbestos in the air around them. At least five times in 2001 and 2002, the levels around team member Patrick Nowak exceeded OSHA's exposure limit, his company records show. "I failed so many times, they quit testing me," he said. The records do not indicate if Nowak was wearing a protective mask known as a respirator, as some other employees' records do.
Tony Garfalo wore a monitor seven times in 2001, and, on four occasions, the results exceeded OSHA's limit, his records show. Once, the asbestos level was more than five times the allowable limit. The records say he was wearing a half-face respirator. Garfalo said his bosses promised to address the situation, but "nothing changed."
He and the others knew all too well the damage asbestos could cause. Garfalo said his father, who worked the asbestos job at the plant, developed asbestosis. Employees in other departments got sick from a type of asbestos-containing pipe covering that once insulated the plant, longtime employees said and court records show. Cheff said his uncle died from asbestosis at 59. A millwright named Teddy Skiba was diagnosed with mesothelioma and later died.
In addition to those signature diseases, which are rare even among asbestos workers, the tiny strands can harm the body in other ways. They can put people at increased risk of heart disease by scarring the lungs, forcing the heart to work harder to pump blood through them to pick up oxygen. Some scientific evidence suggests an association between asbestos exposure and stroke. And battling all kinds of illnesses with damaged lungs can weaken the body's ability to fight them; that damage can mean the difference between life and death.
One retired member of the team, Umberto Bernardone, died from an aneurysm in 2004 at age 77. He had long had trouble breathing, said his son, Mario, who also worked at the plant. X-rays showed that asbestosis had scarred his lungs. "The asbestos was with him all the time," Mario said.
Not long after, another retired team member, Salvatore "Buddy" Vilardo, died from a blood clot, his son said. He was 62.
Cheetham, the group's big brother, had just retired when he fell ill in 2004. A doctor in Buffalo said it was cancer. Cheetham told his daughter Keri that he was certain the asbestos was responsible and asked her to consult a lawyer after he died. When the guys found out he was sick, they showed up at his house. They found their friend in a bed in his living room, under the care of a hospice nurse, struggling to breathe.
Cheetham died five months before his 56th birthday. His autopsy surprised his family — it wasn't asbestos after all; an aggressive form of skin cancer had killed him. His former co-workers weren't told about the autopsy. For years, they believed his cancer had been brought on by asbestos exposure. The memory of Cheetham's last gasps haunted the guys like a ghost, a harbinger of what their own futures might hold.
EPA's faltering attempts to ban asbestos
Elsewhere in the world, governments were taking action to protect their people. Saudi Arabia banned asbestos in 1998, Chile and Argentina did so in 2001, Australia in 2003. By 2005, asbestos was outlawed across the European Union. "It was a no-brainer," said Tatiana Santos, head of chemical policy at the European Environmental Bureau, a network of environmental citizens' groups.
America's EPA could have banned asbestos. Congress could have banned it. But over and over, they crumpled in the face of pressure from OxyChem and its peers in the chlorine industry.
The EPA tried to enact a ban in the late 1980s, but the companies got ahead of it. Records from the time show corporations testified that removing asbestos from chlorine plants would not yield significant health benefits because workers were only minimally exposed; they also argued it would require "scrapping large amounts of capital equipment" and thus would "not be economically feasible."
Under federal law at the time, the EPA was obligated to regulate asbestos in the way that was "least burdensome" to industry. That forced the EPA to make a cold calculation: Banning asbestos in chlorine plants would prevent "relatively few cancer cases" but increase the companies' costs. So when the agency enacted an asbestos ban in 1989, it carved out an exemption for the mineral's use in the chlorine industry.
The EPA made it clear that the companies should begin using alternatives to asbestos screens; in fact, according to company records made public through litigation and published as part of Columbia University and the City University of New York's Toxic Docs project, OxyChem had already developed screens that didn't need an asbestos coating. Still, the companies celebrated their immunity from regulation.
"WE HAVE A WIN," a lobbyist declared in an internal communication included in the Toxic Docs project.
In the end, asbestos was never banned. The asbestos industry challenged the ban in court, and in 1991, a panel of federal judges deemed the rule too onerous and overturned it. The decision was a stinging blow to the EPA, several current and former employees told ProPublica.
"I still remember the shock on the managers' faces," said Greg Schweer, an EPA veteran who ran its new-chemicals management branch before he retired in 2020. The office "was full of energized people wanting to make their mark. But things changed after that." The agency shelved efforts to regulate other dangerous substances and wouldn't attempt a similar chemical ban for 28 years.
Most industries stopped using asbestos anyway, a phenomenon experts largely attribute to a wave of lawsuits from people with asbestos-related diseases. But the chlorine industry kept using its asbestos screens. It continued importing hundreds of tons of the substance every year, more than the weight of the Statue of Liberty.
In 2002, Sen. Patty Murray, a Democrat from Washington, tried to get a ban through Congress. She tried again in 2003 and again in 2007. That year, with Democrats in control of the Senate and House, her effort found some traction. OxyChem was keenly aware how much an asbestos ban would hurt its bottom line. Chlorine and caustic soda were the focus of its chemical operation, financial statements show, driving more than $4 billion in annual sales. Most of OxyChem's plants still used asbestos; if they had to close, production would tumble.
Occidental Petroleum, OxyChem's owner, was a force on Capitol Hill, with lobbyists that spent millions influencing policy and a political action committee that pumped hundreds of thousands of dollars into campaigns each election cycle. OxyChem was also a member of the American Chemistry Council, an influential trade organization that made campaign contributions of its own.
The industry had an ally in then-Sen. David Vitter of Louisiana; at the time, at least a quarter of the 16 asbestos-dependent plants in the country were located in the Republican senator's home state, records show. At a hearing in June 2007, Vitter echoed the chlorine industry's standby talking point, that its manufacturing process involved "minimal to no release of asbestos and absolutely no worker exposure."
"Now, if this were harming people or potentially killing people, that would be the end of the argument, we should outlaw it," he added. "But there is no known case of asbestos-related disease from the chlor-alkali industry using this technology."
Then-Sen. Barbara Boxer, a California Democrat in favor of the ban, pushed back, saying the chlorine manufacturing process was "not as clean as one would think." But to build support for the bill, proponents ultimately agreed to exclude products that might contain trace levels of asbestos, such as crushed stone, as well as the asbestos used in the chlorine industry.
The bill passed out of the Senate on a unanimous vote. But many of the public health advocates who championed the initial measure opposed the watered-down version, saying it had been practically gutted, and it failed to find support in the House. Vitter, who later went on to lobby for the American Chemistry Council, did not respond to requests for an interview.
In the 15 years that followed, congressional attempts to ban asbestos would continue to fall short.
Federal inspections miss evidence
Yet another federal entity had the power to protect the OxyChem workers. There was once a time when OSHA inspectors visited the Niagara Falls plant about every year. That ended in 1996, when the plant won coveted admission into an OSHA program that exempted it from such scrutiny.
The Star Program, created during the Reagan administration as part of OSHA's Voluntary Protection Programs, allows plants that can prove they are model facilities to avoid random inspections. The theory behind the program is that motivating companies to adhere to best practices on their own is more effective than having underfunded government inspectors punish them.
At the Niagara Falls plant, former union leaders believed the program would protect jobs and make the facility safer, they told ProPublica. They worked with management on the application — a months-long process that entailed updating the plant's safety practices and submitting to a rigorous inspection. But what actually changed, the union leaders said, was that OSHA inspectors came far less frequently and announced their visits well in advance.
When OSHA came to re-evaluate the plant, usually every three to five years, management spent months preparing, said Spacone, the union officer. "They would clean the hell out of the place. Everything would be spotless." Work in certain areas came to a halt. Plant representatives tried to limit what the evaluators saw.
Even still, in 2011, evaluators found asbestos "scattered in certain areas of the floor" and covering much of the mechanical equipment, records show. "This contamination can spread easily when dry," they wrote in a report. "Appropriate clean up procedures must be instituted to prevent airborne asbestos." The evaluators did not give the plant an official citation. In the end, they applauded the plant's "commitment to safety and health" and recommended it for continued participation in the program.
Three years later, evaluators identified another issue related to hygiene: Although the plant tested the air for hazards like asbestos, it wasn't using the data to spot problems. What's more, the person in charge of the program wasn't properly trained. OSHA let the plant remain in the program on the condition that it fixed the problems within a year. The plant updated its software and the department leader took a 56-hour course, records show.
Apart from the re-evaluation visits, OSHA made just two other trips to the plant between 1996 and 2021, records show. Only one included a full inspection. On that visit, inspectors cited the plant for failing to protect workers from falls. The other visit did not result in any citations.
With OSHA largely out of the picture, the plant's managers became more lax about safety, Spacone said. "I started thinking [that joining the Star Program] was a mistake," he said. Debbie Berkowitz, a former chief of staff and senior policy adviser at OSHA during the Obama administration, said that, in her experience, it was possible for plants to stay in the program long after their commitment to safety had lapsed. "Once they're in, they're in," she said. "In most cases, it is a total ruse."
OSHA declined to make an official available for an on-the-record interview or comment on ProPublica's findings at the Niagara Falls plant. A Department of Labor spokesperson said that plants can be terminated from the program and that unions can withdraw their support.
In the absence of government intervention, union leaders tried to tackle the asbestos problem themselves, four former union presidents told ProPublica. The union repeatedly asked management to expand the asbestos team and have certain people dedicated to cleaning. Plant leaders refused, they said. "It was a never-ending battle," said Vincent Ferlito, one of the former presidents. "It always came back to the same thing: money."
Fed up with the mess, Garfalo grabbed a roll of red caution tape one day in 2007 and wrapped it around the asbestos-soiled building where his team worked, to the amazement of his colleagues. He barricaded each doorway, then hung as many danger signs as he could find. The protest prompted his managers to hire professionals for a one-time clean, but they also warned him to never do it again, he said.
By 2011, a year after he'd retired, Garfalo couldn't ignore a lingering cough that would occasionally startle him out of sleep. His doctor couldn't tell whether his breathing difficulties were caused by asbestos or his smoking habit, but said that smokers who are exposed to the substance have an even higher risk of serious illness. Garfalo's mind traveled back to a day, a dozen years earlier, when he climbed atop the cell-maintenance building to fix a fan, only to discover that the entire roof was coated in asbestos. Train cars parked beside the building were covered, too. He thought about the homes less than a half-mile away and wondered how far the fibers had traveled.
New battles over a proposed asbestos ban
In August 2021, OxyChem announced it was closing the Niagara Falls plant, blaming "unfavorable regional market conditions" and rising rail costs in New York state. Over time, its workforce had dwindled from more than 1,300 to about 150. OxyChem's chlorine operation was now mostly in Gulf Coast states with lower taxes and less regulation.
And a law that had once protected it from "burdensome" environmental rules had changed.
In 2016, Congress had updated the Toxic Substances Control Act, removing the requirement that the EPA choose regulations that burdened industry as little as possible. Though the change gave the agency another chance to ban asbestos, it wasn't going to happen during the Trump administration; the former president once alleged that the movement against asbestos was "led by the mob" and had his face featured on the packaging of Russian-produced asbestos.
Under the Biden administration, however, the EPA determined that all workers in asbestos-dependent chlorine plants faced an "unreasonable risk" of getting sick from it, citing a review of the companies' own exposure-monitoring data. This April, EPA Administrator Michael Regan proposed a ban for the first time in more than three decades.
It could be eight months or more before the rule is finalized. Two trade associations, the American Chemistry Council and the Chlorine Institute, are imploring the EPA to reconsider. They are once again arguing that the companies use asbestos safely — and they've turned to industry-friendly scientists and consulting firms to accuse the EPA of overestimating the risk to workers.
When given a summary of ProPublica's reporting on the Niagara Falls plant and asked to respond, Chlorine Institute Vice President Robyn Brooks said her organization had no knowledge of the situation and referred reporters to OxyChem. The American Chemistry Council pointed to the plant's participation in the Star program as proof of its "record of performance."
The industry groups have also made the case that a ban would jeopardize the country's supply of chlorine and could even create a drinking water shortage. But the EPA and public health advocates contest those claims. They point out that only a small fraction of the chlorine produced by asbestos-dependent plants is used to clean drinking water and that OxyChem and Olin have voluntarily closed or reduced capacity at several of those plants in recent years without catastrophically disrupting the supply chain.
In fact, OxyChem told investors in August that its plans to upgrade the asbestos-reliant technology at its largest chlorine facility next year would have "no impact on customers," a transcript shows. For at least eight years, the company has been slowly upgrading some plants to a newer technology that uses a polymer membrane to separate the chemicals; it built a completely asbestos-free plant in 2014.
The U.S. Chamber of Commerce has come to the companies' defense, saying asbestos is "tightly regulated" and "used safely every day" in the chlor-alkali industry. So have 12 Republican attorneys general, including Ken Paxton of Texas and Jeff Landry of Louisiana. In a letter, they questioned whether the EPA has the authority to pursue a ban, signaling a readiness to take the agency to court like the asbestos industry did in 1989. (The Chamber and most of the attorneys general declined to comment or did not respond to inquiries from ProPublica. A spokesperson for Nebraska Attorney General Doug Peterson called the situation at the Niagara Falls plant "very concerning" and said that it would be "completely misleading" to suggest that the letter implied approval of such circumstances.)
Industry leaders are confident they will prevail. "We've been engaged in this activity for quite a while and have pushed back on it," Olin CEO Scott Sutton told shareholders on a July 29 earnings call. "I think you're not likely to see a final rule come out that is as proposed."
Michal Freedhoff, the EPA's top chemical regulator, said she could not comment on what the final rule-making decision would be. But she said the agency was not backing down on the science and that ProPublica's reporting underscores the need for decisive action.
Given the potential for litigation, lawmakers are renewing their effort to pass a law banning asbestos, which would be more difficult to challenge in court. "It is a brutal and painful fight," said Linda Reinstein, a leading advocate who co-founded the Asbestos Disease Awareness Organization after her husband, Alan, died of mesothelioma in 2006. "We're not going away."
Hanging in the balance is the health of hundreds of workers at the eight remaining asbestos-dependent chlorine plants in Louisiana, Texas, Alabama and Kansas. ProPublica reached out to current and former employees at those facilities. At the OxyChem plant in Wichita, union president Keith Peacock said he was comfortable with the way asbestos was handled. "I don't know of anyone who sees this as a health issue," he said. "There are rules in place for it and everyone adheres to those safety guidelines."
But Chris Murphy, a former union president at Olin's plant in Alabama, said the conditions there mirrored the ones described by the workers in Niagara Falls. He said he himself had seen asbestos caked on beams and cranes in recent years and been told to remove it with a putty knife. "There ain't nothing to it," he remembered his managers saying. "You'll be all right. It ain't that bad." He wasn't told to wear protective gear, he said, so he didn't.
The former OxyChem workers who still live in Niagara Falls gather once a month to reminisce over Buffalo wings and beef piled high on salty kummelweck rolls. They can only wait and see if they develop symptoms as they enter the post-exposure time frame in which asbestos-related disease is commonly diagnosed.
Saenz left the plant with a bad back in 2016. Now a 64-year-old grandfather of two, he's been having lung trouble and considering X-rays to see if there are signs of asbestos-related damage. "I'm wondering if I'm not headed down that road," he said.
He sees the burden he now carries as a tradeoff for the lifestyle he was once afforded. "It was a great place to work. I was able to raise four children and buy a house and live the American dream." He even gave his son Henry Jr. his blessing to start a job at OxyChem in 2013, so long as he stayed far away from asbestos. Saenz now wonders how much more time he has left with his family.
"It's a nightmare," he said. "It's a price you pay, I guess."
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A Frontier Airlines airplane at Indianapolis International Airport in Indianapolis, Indiana, U.S., Monday, Feb. 7, 2022. (photo: Luke Sharrett/Bloomberg)
Your cheap flight won’t be so cheap after all the fees.
“They’d be hugely unprofitable without the fees,” said George Ferguson, a senior aerospace, defense, and airline analyst at Bloomberg Intelligence. On average, he estimates that budget airlines Frontier and Spirit double their base ticket price with fees for baggage, service, and more. “But even Delta’s trying to do that with people,” he added.
If you’ve had to book a flight lately, or really over the past 15 years, you’ve absolutely noticed the proliferation of fees.
When you start shopping for flights on a website like Expedia or Kayak, you see one price at the start, and by the time you’ve gotten out your credit card, you’re paying tens and even hundreds more dollars than that initial number. Or you go directly to an airline’s homepage to buy and you’re immediately presented with multiple levels of tickets that you can’t quite decipher. Sure, you get what basic economy means (you are cheap and will be treated as such) and what first class is (you’re a big spender and also will be treated as such), but there are options in the middle that are totally unclear. Maybe you opt for one, trying to ensure yourself a better experience, and still you wind up coughing up $40 to pick your seat and $50 to check a bag.
“Too often, people aren’t certain what’s in their cart, they’re often not certain what they’ve purchased, they’re not sure what they haven’t purchased, and too many consumers are confused by it all,” said Jay Sorensen, president of IdeaWorks, a travel consultancy.
To be an airline passenger today is to feel like an extra dollar is being wrung out of you at every turn. Things that used to be free or just the luck of the draw — whether you get a window seat, if there’s some extra legroom — have been stripped out of ticket prices and are now being sold back separately instead. The airline offering has been unbundled, and it costs a pretty penny to put the bundle back together again.
“It’s a behavioral economics question — airlines try to figure out how people are going to behave, and they have policies and prices that respond to that,” said Bob Mann, an aviation analyst. “It’s a game.” And an annoying one at that. It’s not just that fees add onto the final price tag; they can also warp travel in other ways, making the experience more miserable, however much money passengers fork over.
Frontier didn’t respond to a request for comment, and Spirit declined to go on record. In July, JetBlue announced plans to buy Spirit, though it’s still unclear whether regulators will allow the deal to go through.
The story of the airline fee starts with baggage
For decades, it was free on major airlines to check at least one bag (some discount airlines got a head start on charging). But in 2008, amid rising fuel prices and economic turmoil, that started to charge. Airlines such as American and United began tacking on a $15 charge to get your bag checked to your destination.
“With record-breaking fuel prices, we must pursue new revenue opportunities, while continuing to offer competitive fares, by tailoring our products and services around what our customers value most and are willing to pay for,” said John Tague, then the chief operating officer of United, in a statement at the time.
It proved to be a profitable endeavor: The airline industry made over $1 billion on excess baggage fees that year.
It’s all sort of snowballed from there. Airlines figured out how to strip down their offerings to get passengers from A to B (the basic economy fee, or the budget airline fare) and then upcharge for the many things thereafter. It’s a lucrative deal for them — today, airlines make tens of billions on extra fees.
“Airlines charge these fees because the revenue they generate from either charging the fees or selling the optional products is really where airlines make their money,” said Henry Harteveldt, president of Atmosphere Research, a travel industry research firm. “These fees not only exist, but they seem to be multiplying like rabbits.”
More options are nice for passengers in theory, not always in practice
Customers have, in a certain sense, rewarded airlines — including low-cost carriers — for their practices, Sorenson said. Consumers theoretically like choice, and they’re price-sensitive, so it’s not a terrible idea to let people decide what they do and don’t want to pay for. For people who get really anxious about travel, the ability to choose their seat ahead of time and sit by the people they’re traveling with may feel infinitely worth it. For others, not so much.
The problem is, the fees system is often confusing to navigate and at least modestly predatory (see: charging to print a boarding pass). Airlines can lure people in with one price, and then they pile on fees at the back end to drive up costs. And a lot of what they’re charging for isn’t entirely optional.
“In some industries, you disaggregate things so that customers can come in and pick what matters to them and use it,” Ferguson said. “In the airline, it’s a little funky, because you usually need most of those things.”
If you are one of those people who can put everything you’ll need for a three-day trip in your pockets, bless, but most people are not you, and they need luggage that gets either checked or carried on the plane. Sometimes, you don’t know what you’ll wind up needing — say, to change a flight — until the moment arrives. It’s also worth noting that most people don’t fly more than once or twice a year, making the fee situation even more stressful.
“The pressure is on travelers to really anticipate what their needs are going to be in advance, and that is part of the challenge right now,” said Melanie Lieberman, senior global features editor at The Points Guy. “Travelers need to do more forward planning than ever before.”
That means seriously trying to think ahead, reading the fine print, and being pretty skeptical about that initial price you’re shown. Mann noted that some airline co-branded credit cards offer freebies such as checked bags, seat selection, and club entry at the airport. “Basically it is a case of looking at which relationships with the airline have the desired benefits, and seeing whether those relationships are less expensive (some are ‘free’) than paying the fees,” he said. On some search websites, you can also filter to see only options where carry-on bags are allowed.
Beyond the actual cost, fees have distorted travel in other ways — again, really, this starts with baggage. Mann recalled talking to the CEO of a major airline in 2008 about baggage fees and warning him it would probably cause a bunch of flight delays. People were going to try to bring on board the bags they’d previously checked, the planes were going to run out of storage space, and loading and unloading the plane was going to take more time. “He said, ‘Well, yeah, that’s probably right,’” Mann said. Indeed, it was.
Airlines might soon have to be a bit more upfront about money
In September, the White House and the Transportation Department announced a proposed new rule that would make airlines and travel websites disclose fees upfront. The minute the airfare is displayed, they would have to detail extra charges for things such as sitting with your child, canceling a flight, or checking a bag. In a statement at the time, Transportation Secretary Pete Buttigieg said the rule was intended to “help travelers make informed decisions and save money.”
If implemented, the new requirements would be a big deal. “This will be huge in terms of forcing airlines and third-party travel sites to disclose fees,” Lieberman said. The airlines seem to know it. Airlines for America, the lobbying group that represents major airlines in North America, said at the time that its member airlines are “fierce competitors” that “already offer transparency to consumers from first search to touchdown.”
The DoT is currently collecting comments on the fees rule. It is also working to tighten other guidelines around when consumers are refunded for delayed and canceled flights and getting consumers their money back when they pay for a service they aren’t provided (as in, broken in-flight wifi).
Sorensen, who’s generally friendly to the airlines, isn’t in love with the fees rule — he doesn’t think it’s “practical or possible” to implement. But given what the fees have done to the customer experience, he’s well aware why the airlines have invited the “wrath of the government” upon them. “The industry deserves the scrutiny of the government at this point,” he said.
Not to mention that taxpayers just spent billions of dollars bailing out the airlines because of Covid. It’s good the entire industry didn’t go bankrupt during the pandemic, but it’s also hard not to ask whether the industry needs to go on like this.
“The government gave the US airline industry $54 billion in grants and wage subsidies, and what do we get for it?” Harteveldt said. “The ability to complain that the airlines are still around to charge these fees.”
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