California Senate Passes “Drop the Rock” Measure Sparking Political “Rock Throwing”

In California, a campaign is being waged to remove serpentine, the host rock for asbestos--a known carcinogen responsible for the death of thousands of Americans every year, as the state rock of California.

The campaign began nearly three years ago through the efforts of the Pacific Heart, Lung and Blood Institute , the Asbestos Disease Awareness Organization and The John McNamara Foundation, three groups dedicated to raising public awareness of the dangers posed by asbestos exposure and providing resources to families affected by asbestos disease. The campaign recently gained traction when Gloria Romero, a Senator from Los Angeles, introduced Senate Bill 624 removing serpentine as California’s state rock. The bill was unanimously passed by the state Senate and the California Assembly Committee on Natural Resources. The measure is now awaiting an Assembly floor vote which could take place in the coming days.

According to Senator Romero, "This is a question of health and public awareness. We know that California has the highest rates of mesothelioma deaths in the nation and we don't think it's appropriate to be celebrating as the state rock something which contains asbestos."

As a firm which has dedicated its practice to representing victims of asbestos disease for nearly 20 years, we couldn’t agree more with Senator Romero. Surprisingly though, as SB 624 approaches its final hurdles before becoming law, there has been a groundswell of opposition to the measure.

The opposition appears to have originated from a prolific group of geologists who flooded the blogosphere and twitterverse with commentary on what they believe are misconceptions about the maligned rock and the importance of serpentine to California’s history. As more people took notice of the debate, criticism was directed at Senator Romero and other members of the legislature for allegedly wasting time on such a trivial matter while the state is mired in a budgetary crisis. Still others, including an industry-sponsored group seeking tort reform, have gone so far as to characterize the measure as an attempt by trial lawyers to expand asbestos litigation in California.

Serpentine Asbestos.
Accounts for 93% of world’s commercial, purposeful use of asbestos. It is linked to increased risk of lung cancer and mesothelioma

The debate caught the attention of news outlets across the state and then quickly became a national and international story when it was picked up by the New York Times and the BBC News.

The current “rock hysteria” threatens to turn SB 624 into political kryptonite in the days before the crucial Assembly floor vote. In order to cut through the hysteria and understand the core objectives of SB 624, it is necessary to review the 45 year history of California’s ill-conceived state rock.

The History of “Rock”

Prior to 1965, neither California nor any other state had a state rock or a state mineral. State Senator Luther Gibson of Solano County set out to change this when he introduced Senate Bill 265 providing that gold would become California’s state mineral and serpentine would become California’s state rock.

According to the Bill Memorandum dated April 16, 1965:

“Native gold is the mineral that first brought fame—and fortune—to California and gave to this state the designation of the “Golden State.”

Serpentine indirectly is of great economic importance to California. It is the host rock for the state’s newest and more rapidly growing mineral industry—asbestos, now bringing in several millions of dollars annually (emphasis added). It is an attractive rock, selected varieties of serpentine make good cutting material and are used for bookends, paper weights, etc.”

SB 265 was unanimously approved by both the Senate and Assembly and was later signed into law, Government Code Sections 425.1 and 425.2, by Governor Edmund G. Brown. The legislative history makes no reference whatsoever to any consideration given to the adverse health effects of asbestos during the legislative process.

The fact of the matter is that, in 1965, while information concerning the link between asbestos and a number of serious maladies, including cancer, had been known by asbestos companies for decades, the information had not been shared with the public—or for that matter, the California legislature.

For instance, a 1949 internal memorandum from asbestos product manufacturer Johns Manville notes: “The fibrosis of this disease is irreversible and permanent so that eventually compensation will be paid to each of these men. But, as long as the man is not disabled it is felt that he should not be told of his condition so that he can live and work in peace and the company can benefit by his many years of experience.”   

In a 1959 internal memorandum, asbestos product manufacturer National Gypsum callously acknowledges: “Just as certain as death and taxes…If you inhale asbestos, you get asbestosis.”

In a 1966 letter from the purchasing director of Allied Bendix to its asbestos supplier, Johns Manville, the following statement is made concerning workers who had died from asbestos exposure: “My answer to the problem is: if you have enjoyed a good life while working with asbestos why not die from it? There’s got to be some cause.”

It wasn’t until the early 1970’s that information concerning the deadly impact of asbestos exposure prompted federal and state governments to take action. In 1971, the federal Occupational Safety and Health Administration issued its first asbestos exposure standards. Shortly thereafter in 1973, the California Occupational Safety and Health Administration issued its own asbestos exposure standards.

In 1980, the California Supreme Court published the following condemnation of the conduct of Johns Manville in California: “The defendant corporation has known since 1924 that long exposure to asbestos or the ingestion of that substance is dangerous to health, yet it concealed this knowledge from plaintiff, and advised him that it was safe to work in close proximity to asbestos.”

In 1986, the California Air Resources Board acknowledged that “asbestos is an undisputed human and animal carcinogen, and has been documented to cause cancer in humans in both occupational and non-occupational settings.”

The nation’s last asbestos mine, located in California, closed in 2002. All other California asbestos mines had closed in the 1970’s. Many of the abandoned asbestos mines became superfund sites managed by the Environmental Protection Agency.

Due to the extended latency, or delay between exposure to asbestos and the development of disease, of 15 to 60 years, the public health impact of asbestos exposures during the 1900’s has only now reached its peak.

In the United States, it is estimated that 10,000 Americans die every year from asbestos-related diseases. Due to the number of California’s shipyards, refineries, manufacturing plants, and former asbestos mines, California has suffered the most asbestos-related deaths of any state. Moreover, of the thousands of Californians diagnosed with asbestos related diseases each year, many lack adequate health insurance and become dependent on the state’s Medicaid program.

So, to summarize, since the time Senator Luther Gibson’s bill to recognize “the state’s newest and more rapidly growing mineral industry—asbestos” was enacted into law in 1965, information concerning the deadly consequences of this industry became known to the legislature and others, eventually leading to the collapse of the industry within 15 years and a legacy of hundreds of thousands of Californians suffering and dying from various forms of asbestos disease which will continue for decades to come.

When considered, as it should, against the backdrop of this history, it is clear that SB 624 is nothing more than a long-overdue attempt by the current California legislature to retract the 1965 legislature’s and governor’s endorsement of the now-defunct California asbestos industry.

Rock of Ages?

As indicated above, the “rock hysteria” appears to have begun with geologists’ reaction to SB 624, citing what they believe are misconceptions about serpentine and the important role of serpentine in California’s history.

In terms of historical significance, some geologists have asserted that serpentine is closely associated with gold deposits in the foothills and the California Gold Rush. However when reviewing the 1965 Bill Memorandum for SB 265, it is clear that the legislature was recognizing the important role of gold deposits and the Gold Rush by designating gold itself as the state mineral. It is also clear that the role of serpentine in California’s history had nothing to do with designating serpentine as the state rock.

To quote again from the Bill Memorandum for SB 265:

“Serpentine indirectly is of great economic importance to California. It is the host rock for the state’s newest and more rapidly growing mineral industry—asbestos, now bringing in several millions of dollars annually (emphasis added).”

Clearly, serpentine was being proposed as the state rock because of the current and anticipated future economic impact of the asbestos industry. The memorandum even goes so far as compare the “newest and more rapidly growing mineral industry—asbestos” to the historic gold industry.

In terms of misconceptions, geologists are quick to point out that not all serpentine rocks contain asbestos, and that chrysotile, the type found most frequently in serpentine, is not as dangerous as other types of asbestos. While hardly the type of attributes which would make a rock worthy of “state rock” anointment, these purported misconceptions again miss the point when reviewing the foregoing history.

While it may be true that not all serpentine rocks contain asbestos, it was the role of those serpentine rocks which do serve as the “host” for asbestos which was integral to the selection of serpentine as the state rock. Clearly, if not for asbestos and asbestos industry’s contribution of “several millions of dollars annually” to the state’s economy, serpentine would have never been up for consideration.

Because the impact of asbestos and the asbestos industry served as the basis for adopting serpentine as the state rock in 1965, it is only fair that the impact of asbestos and the asbestos industry on California in the years following 1965 serve the basis for removing serpentine as the state rock. It is simply inequitable, in light of the history of this matter, to suggest that proponents of SB 624 are being overly sensitive or political by raising the public health impact of asbestos as a reason to drop California’s state rock. That stone was cast 45 years ago.

As far as the argument that the chrysotile asbestos most frequently found in serpentine is “not as dangerous” as other types of asbestos—this is, at best, a dubious distinction. The World Health Organization, The Environmental Protection Agency, and U.S Surgeon General all agree that all forms of asbestos, including chrysotile, are carcinogenic and that there is no safe level of asbestos exposure. Furthermore, the state of California includes all forms of asbestos, including chrysotile, as hazardous substances and registered carcinogens which are subject to strict regulation under the California Occupational Safety and Health Act.

Serpentine is a rock of great scientific importance. Geologists have and will continue to educate students and the public about this and other equally important rock whether or not serpentine continues to hold the lofty title of “state rock.” In fact, the events of the last 45 plus years which have seen asbestos-containing serpentine go from a source of pride to a source of embarrassment for the state of California, will only intensify the public interest in serpentine in California and beyond.

Throwing Rocks at Familiar Targets: Politicians and Trial Lawyers

Given California’s ongoing fiscal crisis and the amount of litigation which has resulted from the number of Californians who have contracted asbestos disease (more than any other state), it was only a matter of time until opponents of SB 624 turned their attention to politicians and trial lawyers.

Senator Romero, and the legislature as a whole, have been accused of wasting time and taxpayer dollars on a trivial matter at a time when the state faces a number of real challenges. Again, in light of the history of California’s state rock, this is not a trivial or “fluff” exercise of comparing colors or appearances of rocks which will make people feel a sense of pride or connection with their state.

In the case of serpentine, the 1965 legislature was so enamored with “the state’s newest and more rapidly growing mineral industry—asbestos, now bringing in several millions of dollars annually” that both chambers unanimously voted to honor the industry by naming its host rock as the state rock. They did so without giving any consideration whatsoever to the public health consequences of asbestos which were already starting to rear their ugly head. Within the next few years, the public health consequences led to a complete collapse of the once-promising industry and a legacy of hundreds of thousands of Californians suffering and dying from asbestos disease which continues to this day.

Despite the events of the last 45 years, and the myriad of legislation that has been passed acknowledging the hazards of asbestos and regulating its use in the state, the California legislature has failed to re-examine its ill-conceived endorsement of the now-defunct asbestos industry. That is until SB 624 was introduced by Senator Romero.

Senator Romero has clearly attempted to reduce the time and resources necessary to pass SB 624 by having it simply repeal Section 425.2 of Government Code which designates serpentine as the state rock. SB 624 does not embark on the time consuming adventure of attempting to designate a replacement rock. In fact, by repealing Section 425.2 altogether, SB 624 recognizes that the whole notion of a state rock is, in and of itself, trivial.

To this point in the process, very little legislative resources have been expended as SB 624 was unanimously approved by the Senate and then by the Assembly Committee on Natural Resources. It is only now, with attacks on SB 624 not fully accounting for the history of the matter having created “rock hysteria”, that politicians may feel the need to draw out the process.

Further inflaming the matter is the claim fostered by the Civil Justice Association of California, an industry-sponsored group seeking to restrict lawsuit damages, that SB 624 is supported by trial lawyers who will use it to expand asbestos litigation which will only further congest California’s courts. However, a review of the text of SB 624 reveals that there is simply no basis for this specious claim.

As indicated above, SB 624 simply repeals Section 425.2 of Government Code which designates serpentine as the state rock. Section 425.2 did not extend any protections from asbestos injury claims to any asbestos product manufacturers, distributors, landowners or municipalities which SB 624 would now repeal. Furthermore, SB 624 does not provide for any new rights of actions against any such parties.

One can only surmise that Civil Justice Association’s real reason for opposing SB 624 is related to the impact which the repeal of asbestos/serpentine as California’s state rock will have on a jury trial “ploy” frequently used by attorneys for asbestos companies. For years, when attempting to convince a jury that an asbestos company was not aware of the dangers its products presented to workers, asbestos company lawyers cite to the fact that from 1965 to the present, asbestos/serpentine has been the state rock of California. The implication being that, if the state of California didn’t (and still doesn’t) think that asbestos was dangerous, how could the asbestos company?

Clearly, after 45 years, the time for this type of gamesmanship has passed. The dangers and public health consequences of asbestos are beyond dispute. Government Code Section 425.2 was never intended to limit anyone’s legal rights—it was simply a way for an ill-informed legislature to recognize the contributions of a new industry to the state’s economy. SB 624 just as simply retracts what turned out to be a severely misplaced endorsement of a now-defunct industry without adding to, or taking away, anyone’s legal rights.

Rock the Vote!

The clock is ticking. The Assembly floor vote could take place any day.

We urge you to contact your Assemblypersons and pass along the history of this situation which has so much relevance to their vote on SB 624. Tell them that this is their opportunity to correct the injustices which have transpired from the 1965 legislature’s misplaced endorsement of California’s now-defunct asbestos industry. You—and they---can be the voice of hundreds of thousands of Californians whose breath has been stolen by asbestos disease.

Go to: www.assembly.ca.gov/acsframeset9text.htm and type in your zip code to get the name and contact information for your Assemblyperson.

John Caron

*** POSTED JULY 22, 2010 ***