This is the second of three articles that Richard Brenneman writes about last week’s GJEP-sponsored event, Unmasking the Bay Area Bio-Lab and Synthetic Biology. Cross-posted from Eats, Shoots ‘n Leaves. – GJEP
2012 April 1 – Trust us, says Lawrence Berkeley National Laboratory’s chief “bioengineer,” who told San Francisco Chronicle writer David Perlman that the genetically engineered microbes the UC Berkeley-run lab’s microrganisms “will now be made even safer by the thoroughness of engineers.”
And as Keasling told Contra Costa Times scribe Robert Rogers, “there are often fears and misunderstandings associated with the development of new technologies. He noted that the work that will occur in Richmond is no different from the research and development at current lab sites, and that the lab adheres to all federal regulations.”
So thorough engineers — an odd name for folks who work with living things — and federal regulations will ensure that the new life forms tweaked out of artificially created DNA won’t spawn aren’t anything to worry about, right?
And we should trust them even though their dreams are to make millions capitalizing on the research they conduct for California’s public universities, right? [Keasling, for instance, has started at least three for-profit genetic engineering corporations, and Chris Somerville, the head of UC Berkeley’s Energy Biosciences Institute, has made millions off GMOs.]
And what about those federal regulations Keasling touts? Well, consider this from a 2010 report by the Council for Responsible Genetics report Worker Safety in Biological Laboratories [PDF] on regulations from the Occupational Safety and Health Administration and the National Institutes of Health:
While comprehensive and frequently updated, the NIH guidelines are largely advisory for many institutions. Even the NIH guidelines on rDNA research, which are mandatory for academic institutions, remain largely unenforced.
This is primarily because the NIH is not an inspection or enforcement agency. OSHA regulations on the other hand, while mandatory, do not address a broad range of potential safety issues encountered in biological laboratories. OSHA has specific regulations governing chemical substances and blood borne pathogens, which focus on HIV and HBV. However, most of the potentially infectious agents studied and engineered in biolabs are covered by neither of those two provisions in the OSHA regulations.
Doesn’t that make you feel so much safer?
Well, some folks think otherwise, and they spoke before a packed house at Berkeley’s David Brower Center Thursday night during the “Unmasking the Bay Area Bio Lab and Synthetic Biology” forum, sponsored by a coalition of environmental and worker safety organizations.
The legal labyrinth and the injured worker
One of the evening’s most compelling stories came from David Bell and his mother, Sandi Trend.
In 1999, Bell, then a senior at UC Davis, found a job at a local biotech company spun off from the university, where he became desperately ill following an apparent exposure to microbes drawn from soil samples by AgraQuest, which describes itself as “a leader in innovative biological and low-chemical pest management solutions.”
As with most California biotech companies, it’s partnered with industry giants, including Monsanto, Bayer, Syngenta, and BASF. And, as with many California biotech operations including Jay Keasling], the CEO has since departed to start a rival venture.
While Agraquest wasn’t genetically modifying the microbes it collected form soil assembled from around the world, it was searching for microbes to commercialize for their “green pesticide” product line.
He was working on two projects, one seeking fungus-killing organisms for a fungicide to be marketed to organic farmers, and the second seeking microbes to kill mosquito larvae.
There’s no disputing that Bell got sick while working at AgraQuest, contracting an illness that required multiple surgeries and monthly blood infusions costing $7,000 each because the illness had destroyed his immune system’s ability to produce T-cells, essential for fighting off infections.
Before his first surgery at a Sacramento hospital, Bell and his mother requested physicians take cultures from his sinuses to identify the infectious agent ruining his health. But the samples weren’t taken, a critical factor that would contribute to the denial of a later worker’s compensation claim.
Adding to the complicated nature of the case: AgraQuest’s sat on the hospital’s board, and a judge who killed a subsequent lawsuit was married to a spouse “who worked with people involved with the case,” said Trend.
Bell has been left with staggering medical bills, and no legal recourse.
OSHA later fined AgraQuest for inadequate ventilation, and while the Yolo County Department of Health referred complaints about AgraQuest to the U.S. Department of Agriculture, the the California Environmental Protection Agency, and the state Department of Pesticide, the county received no responses.
If it sounds like a complex story, it is.
If there’s a single takeaway from Bell’s story, it is this: California’s biotech industry is poorly regulated, conflicts of interest abound, and the burdens fall heaviest on the industry’s workers, rather than on the corporations — which are backed by deep pockets and the finest legal talent money can buy.
When even victory comes with defeat
Becky McClain should’ve been an industry success story. As a microbiologist working for pharmaceutical giant Pfizer, she developed a new technique for introducing novel genetic segments into viruses, a powerful tool in the armamentarium of genetic engineering.
But then she was appointed to the company’s health and safety committee, where she took her job much too seriously, raising issues that infuriated company officials. One complaint focused on a co-worker who had been, unbeknownst to her, working on a dangerous virus at her desk.
After company officials brushed off her concerns, she turned to the Occupational Safety and Health Administration, setting off alarm bells with officials at the company’s Groton, Connecticut, facility, leading, inevitably, to personal attacks.
And then she got sick along with several other scientists at the Connecticut lab. “Before I left, I was exposed to a genetically engineered virus that was left outside my office,” she said.
Finally, after eleven month away from work, she was fired.
McClain sued, both for claims resulting from the illness and for whistleblower retaliation.
In searching for expert witnesses to testify about her illness, she discovered that most of the academic researchers she hoped would help were compromised by Pfizer funding, while the lead expert recruited by Pfizer headed a program which had received $450 million of the company’s money.
But it didn’t matter. The judge, a Bush appointee, threw out her illness claims, in part because she couldn’t get an accounting of the pathogens to which she might have been exposed. Pfizer successfully argued that production of the list would violate trade secrets, and the judge agreed.
Without a full accounting of the organisms to test against her own blood, she was unable to show that her illness resulted from workplace exposure, a legal Catch 22.
But the federal court jury found that Pfizer had retaliated against her for raising concerns and speaking out against corporate practices, awarding her $1.37 million in April, 2010.
Then came the revelation that the judge, Vanessa L. Bryant, was caught in a conflict of interest: Her husband, as attorney for Guardian Life, had retained the same law firm that represented Pfizer in McClain’s case. A new judge, Warren Eginton, took over the case and awarded McClain $450,000 in legal fees and $460,000 in punitive damages.
McClain has yet to see any of the money.
Her cause points to astounding gaps in regulations supposedly designed to insure worker and workplace safety, gaps acknowledged by Obama OSHA Director David Michaels has acknowledged.
Lee Howard of The Day [New London, Connecticut] reports:
Michaels, in an interview with The New York Times, acknowledged that the McClain case has begun to show up on his radar and that he was considering improved regulation of the biotech and nanotech industries. “We do not have industry specific standards for these two industries,” OSHA acknowledged in response to a request for elaboration.
Safety advocates added that OSHA will have to shore up its knowledge base as well, adding personnel who understand the complicated technologies – nanotech, involving the exploration of atomic and molecular entities to create new materials and devices; and biotech, generally dealing with the discovery of new medicines – and their potential health and safety risks.
Both nanotech and biotech are principal focuses of the new national lab campus UC Berkeley plans to build on the Richmond shoreline.
The jury’s findings in her lawsuit are posted here.
And here’s an excerpt of a Counterpunch article Ralph Nader wrote about her case:
As for Becky McClain, this is just the end of the beginning. She says she has lost her career, her health and her health insurance. But she recognizes her case is in the vanguard of many other cases and worker protests to come before enforceable and openly accessible standards and practices become the way of doing business for these labs.
For when it comes to developing materials that are inherently latent, subvisible forms of silent violence, business as usual can become cruel and unusual punishment for innocent, defenseless scientists, lab technicians and other workers.
And here’s a video recorded in December, 2010, when McClain was awarded the Joe A. Callaway Award for Civic Courage.
The Bay Area’s own biowarfare lab
Lest reader’s think deadly microbes aren’t a concern for San Francisco Bay Area residents, consider that UC Berkeley’s Lawrence Livermore National Laboratory [LLNL] now houses a biowarfare lab.
Another speaker at Thursday night’s gathering was Scott Yundt, attorney for Tri-Valley CAREs, a civic organization created to watchdog the lab, which specializes in nuclear weapons technology.
When his group learned that LLNL wanted to build a lab experimenting with deadly viruses and bacteria within 300 yards of homes and schools, they launched a petition drive, eventually gathering 8,000 signatures opposing the lab’s plans.
They also teamed up with activists in New Mexico, where Los Alamos National Laboratory [which the University of California co-administers] had planned a similar facility.
A lawsuit followed, taking seven years to make its way through the courts. In the end, the lab was built, though with more safety precautions than had been included in the original plans.
“The only thing the court cared about was the terrorism threat,” Yundt said.
Plans for the second lab at Los Alamos were scrapped.
Tri-Valley CAREs has good reason to worry.
In 2007, the lab was fined $450,000 after a scientist shipped open vials of anthrax to a lab in Palm Beach, Florida, and sending more than the requested number of vials of the deadly pathogen to a Virginia lab on the following day. The scientist who made the potentially lethal error left the lab before the Department of Health and Human Services levied the fine.
Workers at the Florida lab who opened the package were treated with a powerful antibiotic before symptoms could develop.
Yundt said that only a random safety inspection stopped another experiment at LLNL, where scientists were attempting to make the plague bacterium resistant to antibiotics.
Kinda gives you pause when UC scientists say “Trust us.”
Yundt said citizens concerned about what happens at the proposed Richmond lab have few legal tools at their disposal because the site will fall under federal law.
“The only law you can use is FOIA [the Freedom of Information Act], and then it takes a year on average to get information that should be available as a matter of course,” he said.
And for readers in Berkeley and environs, it’s worth nothing that in 2004, researchers at Children’s Hospital Oakland Research Institute were revealed to have handled anthrax spores improperly during experiments on mice. Eight of 12 potentially exposed lab workers took antibiotic treatment.
And a death from plague
Another speaker, Joan Chou, knows all too well the hazards of working with deadly agents in a lab setting.
Her husband, Malcolm Casadaban, was a highly experienced Harvard-trained microbiologist working with a supposedly “safe” strain of Yersinia pestis, the bacterium responsible for Bubonic plague, the same organism Lawrence Livermore scientists were trying to render immune from antibiotics.
Casadaban was working in his University of Chicago lab under one of ten national defense biolab contracts, Chou said. He contracted the disease, dying within days of exposure on 13 September 2009. His aim, according to a New York Times story, was the create a vaccine to protect against plague.
Chou said her husband had worked at the university for more than three decades, and had served on its biosafety committee for 10 years. “His death was not really mysterious, but it was covered up by the University of Chicago, the CDC [Centers for Disease Control], and other agencies,” she said.
A worker’s advocate speaks out
Steve Zeltzer helped found the California Coalition for Workers Memorial Day, which holds annual commemorations for workers who lose their lives on the job and fights for greater workplace protections.
He also reports on labor issues for KPFA radio in Berkeley and works for the Injured Workers National Network.
The biotech field poses unique problems for workers who suffer work-related injury and illness, Zeltzer says.
“Workers are getting sick and cannot even prove where they got sick under Workers Comp law,” he said. “This is a whole new issue in health care.”
“Workers are also excluded from Workers Comp protections because they have to sign secrecy agreements and can be fired and or sued if they speak out.”
“How can we expect ot be safe is people are afraid they’ll lose they’re jobs if they raise questions,” he said, “and we don’t know how many workers have become infected because of the secrecy agreements.
“Biotechnology and nanotechnology workers must prove their injuries” to be covered by Workers Comp, “ but with new diseases, it’s almost impossible to prove, and workers end up on Social Security ot they end up dead.”
Zeltzer noted that UCLA is currently the target of a lawsuit over the 29 December 2009 explosion and fire in a campus chemical lab that killed a just-hired 23-year-old worker who was following a faculty member’s instructions. The university was fined $31,000.
A subsequent investigation by the California Bureau of Investigation revealed reckless disregard for worker safety.
Professor and lab director Patrick Harran was charged in December with three felony counts of occupational health and safety standards causing death and faces more than four years in state prison if convicted.
Such accidents raise questions about how the university will handle biotechnology, Zeltzer said.