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Asbestos Policy (5-13-04)

Libby, Montana, home of the now defunct W.R. Grace & Co. vermiculite mine, has brought a renewed interest in the health dangers of asbestos. A series of Seattle Post-Intelligencer articles beginning in November 1999 about the Libby vermiculite mine and the nearly 200 asbestos-related deaths there over the last 40 years prompted a public outcry, two federal investigations into government agencies' failure to warn Libby residents and workers, declaration of a Superfund site, and a renewed interested in banning asbestos products. Asbestos is classified as a Group A carcinogen by the Environmental Protection Agency (EPA) due to health risks associated with inhalation, including lung cancer, mesothelioma, and asbestosis.

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Greenwire reported on May 10th that no agreement has been reached in conference committee over the details of S. 2290, which aims to create a trust fund for people suffering from asbestos-related illnesses and to also provide industry protection from frivolous claims. Senate Majority Leader Bill Frist (R-TN) and Minority Leader Tom Daschle (D-SD), aided by former federal judge Edward Becker who is leading the talks, will continue to negotiate with asbestos victims, labor unions, and industry interests. There are some doubts that a consensus will be reached this year because of the upcoming elections, but Daschle is "confident more progress can and will be made in the coming weeks." (5/13/04)

The Environmental Working Group (EWG) released a study called "Asbestos: Think Again" on March 4th that finds almost 10,000 Americans die each year from diseases caused by asbestos exposure. The study also said that the mortality rate is expected to increase over the next decade as people exposed from the 1960's through the 1980's begin to appear in disease or mortality statistics. The data used for the study were 25 years of government mortality records and epidemiological studies, which found that the mortality rate was highest in older men.

Senate Majority Leader Bill Frist (R-Tenn) has vowed to complete an asbestos litigation bill by the end of March, although Greenwire reported that Senators negotiating the specifics have not yet released any details of their negotiations. The bill is said to include a proposal to have a trust fund administered by the Department of Labor instead of a federal magistrate. The Association of Trial Lawyers underwrote half of the EWG study and has been critical of the Senate's legislative efforts. The asbestos issue was taken up by the Senate Judiciary Committee last year due to the number of claimants and many bankruptcies caused by lawsuits. Senate negotiations stalled last year after Democrats and Republican leadership could not agree on the size of the asbestos victims' trust fund or how it was to be administered. According to Greenwire, the report's author, Richard Wiles, called on government officials to completely ban asbestos and mesothelioma victim Ellen Patton declared that any legislation without funding for a cure and a ban on asbestos is wrong. (3/10/04)

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According to the Seattle Post-Intelligencer, Senator Patty Murray (D-WA), who sponsored a proposal last year to ban asbestos, is seeking Republican co-sponsors to reintroduce the bill this session. Senator Murray is also seeking an explanation as to why the White House Office of Management and Budget blocked the EPA's plans to declare a public health emergency in Libby, Montana. (1/15/03)

According to a January 25, 2003, Minneapolis-St. Paul Star Tribune article, the EPA said it was unaware of test data documenting unsafe levels of asbestos dust in vermiculite insulation. Some of the tests date to the 1970's and were conducted by W.R. Grace & Co., the insulation manufacturer who operated the now-defunct vermiculite mine in Libby, Montana. More recent tests performed in attics in Montana, Washington, and Canada indicate asbestos fibers at 50 times the federal limit. (1/28/03)

On March 5, 2003, the Senate Judiciary Committee held a hearing to explore ways to address the asbestos litigation crisis. Passionate testimony was heard from the witnesses, who included senators, individuals suffering from asbestos related diseases, labor unions, and trail lawyers. All of the witnesses agreed asbestos litigation was out of control and action should be taken quickly by Congress to protect both the victims and the companies involved. The most contentious issue involves the possibility of requiring victims to meet specific medical criteria before seeking legal compensation for their exposure - such as those recently recommended by the American Bar Association (ABA) and in the recently introduced legislation S. 413 by Senator Don Nickles (R-OK). The victims, Senator Max Baucus (D-MT), and the AFL-CIO voiced concern about the narrowly defined medical criteria, saying it would eliminate the right of many asbestos victims to sue, especially with regard to sick individuals who are not terminally ill. Specifically, Baucus said the ABA's medical criteria would exclude over 70% of the asbestos related cases in Libby, Montana, because tremolite-related lung disease doesn't appear on chest X-rays as readily as chrysotile-induced lung scarring. Baucus also noted that non-occupational asbestos exposure is worse with tremolite than chrysotile, adding that "the difference between tremolite and chrysotile cannot continue to be ignored." Jonathan Hiatt of the AFL-CIO believes a compromise incorporating medical criteria and trust funds could be reached. He believes payments should be based on medical criteria, but more fairly defined than those of the ABA. In his closing statement, Senator Orrin Hatch (R-UT) challenged the various factions to "make their case" to him within the next two weeks, saying, "I will get a bill here." (3/7/03)

On March 10, 2003, the Supreme Court ruled that railroad workers who were exposed to asbestos may sue for damages based on the fear of developing an asbestos-related cancer in the future. The employees sued under the Federal Employer's Liability Act, which applies specifically to railroad negligence, but the ruling will set precedent for future asbestos litigation and possibly extend to litigation involving other toxic substances. The ruling also may hamper current attempts to control the asbestos litigation crisis through the establishment of medical criteria. The Los Angles Times reported that asbestos-related settlements have driven 57 companies into bankruptcy. The concern is that by not allowing the usage of medical criteria, fear-of-cancer lawsuits will continue to drive companies into bankruptcy and employees with serious illnesses will not receive authorized payments. (3/12/03)

On May 22, 2003, Sen. Patty Murray (D-WA) reintroduced the Ban Asbestos in America Act, S. 1115. The legislation, which did not make it out of committee last Congress, would require the Environmental Protection Agency (EPA) to ban asbestos in two years; require the EPA to conduct a public awareness campaign about asbestos; invest in research, tracking, and treatment of asbestos diseases; and issue a study into the non-regulated forms of asbestos by the National Academies and the EPA's Blue Ribbon Panel. Murray introduced her bill the day after the EPA launched a national consumer awareness campaign to warn homeowners not to disturb vermiculite attic insulation, as it may contain small quantities of asbestos. Disturbing the insulation could release asbestos fibers into the air, exposing homeowners. In a press release, Stephen Johnson, EPA's Assistant Administrator for the Office of Prevention, Pesticides, and Toxic Substances, stressed that "people who have homes with vermiculite attic insulation should become informed, not alarmed." Murray remarked in a statement that she applauds the EPA's public education campaign about attic insulation, but that people should also be warned about other potential asbestos-containing products, such as roofing shingles and brakes. Rep. Henry Waxman (D-CA) introduced the companion bill H.R. 2277 in the House. (5/23/03)

On May 23, 2003, labor organizations denounced proposed legislation by Senate Judiciary Committee Chairman Orrin Hatch (R-UT) to create a $108 billion trust fund aimed at settling asbestos-related illness litigation. The trust fund would control the current litigation onslaught through the use of medical criteria set by the American Medical Association to award compensation. As reported in the Minneapolis Star Tribune, AFL-CIO officials said the trust fund is unrealistically low and sets overly restrictive medical criteria that require doctors to prove their patients' exposures. (5/23/03)

On June 4, 2003, the Senate Judiciary Committee held a hearing to examine S. 1125, the Fairness in Asbestos Injury Resolution Act of 2003. S. 1125 was introduced by the committee's chairman, Sen. Orrin Hatch (R-UT). This hearing was the third and final hearing on this bill, which began mark up on June 12th. The majority of the witnesses agreed that a method of settling asbestos injury claims outside of the judiciary system is needed, but many raised concerns as to its implementation and scope. As cited in the bill, the purpose of S. 1125 is to "create a privately funded, publicly administered fund to provide the necessary resources for an asbestos injury claims resolution program." The bill would establish a United States Court of Asbestos Claims, separate from the judicial system, which would deal exclusively with asbestos litigation under a no-fault system. Claimants would be awarded financial compensation in correlation with their level of exposure and any resulting impairment to themselves or deceased relatives. This court would be exclusively for claims regarding work place exposure, but people exposed to asbestos outside of the work place would still be able to bring claims through the tort system. Also excluded from this process would be claims under worker compensation and veterans' rights jurisdiction. A highly contentious provision of the bill would subtract money already received by the claimant through collateral sources from the amount granted by the court. These collateral sources could include health insurance, disability insurance, Medicare, Medicaid, or death benefits programs. (6/25/03)

On June 24, 2003, the Senate Judiciary Committee met to mark-up S. 1125, the Fairness in Asbestos Injury Resolution Act of 2003. Chairman Orrin Hatch (R-UT) and Ranking Member Patrick Leahy (D-VT) presented to the committee their agreed-upon amendments, which altered the fund's medical criteria and award system. The amendments would negate the bill's deduction of collateral sources from award values, adjust award values for inflation, double the statue of limitations, eliminate the 1982 exposure cutoff date, and ask the Institute of Medicine to investigate the link between asbestos exposure and cancer. Hatch and Leahy also agreed to "a responsible ban of asbestos related products" currently in use. The amendments were agreed to by the committee, with additional amendments to be discussed on Thursday, June 26. This mark-up followed a hearing on S. 1125 on June 4. (6/25/03)

Sen. Hatch's $108 billion trust fund for asbestos injury victims was approved by the Senate Judiciary Committee on July 10, 2003 after much debate and compromise. The committee passed the bill, the Fairness in Asbestos Injury Resolution Act (S. 1125), 10-8 with members of both parties warning they may vote against the bill when it comes to the full Senate. Assigning compensation levels for victims was the last hurdle to jump after compromises were already agreed to on medical criteria and a financial backstop. In its present form, the bill would award $1 million to victims falling under the sickest category. Included amendments would ban most commercial uses of asbestos, provide a contingency plan for a possible funding shortfall, and return asbestos claims to the tort system if the fund was allowed to run out of money. (7/22/03)

In an effort to obtain bipartisan support for Senator Orrin Hatch's (R-UT) asbestos compensation bill, S. 1125, Senate Majority Leader Bill Frist (R-TN) has been working with Minority Leader Tom Daschle (D-SD), other Senate Democrats, asbestos manufacturers, the insurance industry and labor unions to reach an agreement that would limit lawsuits against industry and set up a trust fund to compensate victims of the fiber. Environment and Energy Daily reported on November 17, 2003 that these discussions were starting to bear fruit. Republicans increased the amount of money in the trust fund above the levels outlined in Senator Hatch's stalled bill -- $57.5 billion contributed by asbestos manufacturers, $46 billion from insurers, and companies may add $10 billion if the amount of claims is higher than anticipated. Labor unions have signaled that the increase is insufficient and the fund should have at least $153.8 billion to pay the claims of people with asbestos-related diseases. Other issues still being worked through include how and by whom claims will be processed and awards administered. Hopes of passing a bill were extinguished on November 25th when the Senate adjourned for the Thanksgiving holiday. Senator Frist told The Washington Post that he will schedule Senate action on asbestos legislation next year by the end of March. (11/26/03)

Background

According to the EPA Asbestos Home Page: "Asbestos is a problem because, as a toxic substance and a known carcinogen, it can cause several serious diseases in humans. Symptoms of these diseases typically develop over a period of years following asbestos exposure." The web site provides information about where asbestos is commonly found, and other commonly asked questions. Asbestos is classified as a Group A carcinogen by the EPA due to health risks associated with inhalation. Primary health concerns include lung cancer, mesothelioma (cancer of the thin membranes lining the abdominal cavity and surrounding internal organs), and asbestosis (a specific form of lung disease).

The EPA issued a rule prohibiting the manufacture, processing, and importation of most asbestos products in 1989 due to the related health problems; however, a 1991 ruling by the US Fifth Circuit Court of Appeals, in response to a lawsuit brought by the American and Canadian asbestos industries, essentially negated the rule. The lawsuit argued that the EPA had not thoroughly studied alternatives to an asbestos ban. In the 107th Congress, the Senate Committee on Health, Education, Labor, and Pensions (HELP) held a hearing to look into asbestos issues, with the possible goal of beginning to form regulations for the production and use of the substance.

In a 1999 Supreme Court ruling that revoked a $1.5 billion class action settlement, the justices ruled that the settlement had compromised the rights of the victims and that it was up to Congress to develop legislation to help move the numerous asbestos lawsuits through the court system at a faster pace. A 2002 report released by Sebago Associates, which was commissioned by the American Insurance Association, estimated the cost of asbestos claims resulted in more than 60 companies filing for bankruptcy. Momentum has been building in the past few years on Capitol Hill to pass legislation regarding asbestos-related claims.

Libby, Montana
In Libby, Montana, home to the W.R. Grace and Co.'s closed vermiculite mine, nearly 200 people have died over the last 40 years, and more than 375 additional people have been diagnosed with asbestos-related fatal diseases. A byproduct of the vermiculite mining was the release of tremolite, a form of asbestos, into the air. In addition, there is concern that vermiculite ore shipped from Libby across the country may have contaminated other plants as well.

After years of debating who had the authority to address the environmental and medical problems of Libby, and whether the statute of limitations on a criminal investigation had expired, the EPA finally insisted on May 26, 1999, that the site must be cleaned up. Less than a week later the EPA announced that it had known about the asbestos situation in Libby since the mid-1980's and found that asbestos-related death rates would be nearly 100%, yet had done nothing about it. This spurred the EPA to request an outside agency to perform an audit of the activities surrounding the mine, which was released in April of 2001, one day after W.R. Grace filed Chapter 11 bankruptcy. On October 23, 2002, the Environmental Protection Agency (EPA) announced the addition of the Libby site to the National Priority List for Superfund sites.

Additional information from the 107th Congress.

Sources: Seattle Post Intelligencer, Washington Post, Star Tribune, Sacramento Bee, Greenwire, EPA, EEnews, Congressional Research Service, The New York Times, SF Gate, The Billings Gazette, Minneapolis Star Tribune, and the Library of Congress.

Contributed by Charna Meth, 2003 Spring Semester Intern; Emily R. Scott, 2003 AGI/AIPG Summer Intern, Gayle Levy, 2004 AGI/AAPG Spring Semester Intern and Bridget Martin, 2004 AGI/AIPG Summer Intern.

Background section includes material from AGI's Update on Asbestos for the 107th Congress.

Please send any comments or requests for information to AGI Government Affairs Program.

Last updated on May 13, 2004.