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Asbestos Policy (6-2-05)

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. While legislation managing compensation for victims of asbestos stumbled by the end of the 108th Congress, Senate Majority Leader Bill Frist (R-TN) and presumptive Minority Leader Harry Reid (D-NV) will likely resume negotiations in the 109th Congress.

The Senate Judiciary Committee passed a $140 billion asbestos trust fund bill (S. 852) on May 26, 2005. Sen. Arlen Specter (R-PA) formally introduced the bill in April, after months of trying to resolve disputes among Republicans and Democrats regarding the size of the fund, how to compensate victims with related diseases, and how to provide fair compensation for spouses. Voting on the bill had been further delayed by the fight in the Senate over President Bush’s judicial nominations in mid-May. After seven mark-ups, the bill was finally approved by a bipartisan vote of 13-5. All of the panel’s Republicans backed the bill, plus ranking member Patrick Leahy (D-VT), Sen. Dianne Feinstein (D-CA.), and Sen. Herbert Kohl (D-WI).

Asbestos-related personal injury lawsuits have flooded courts for the past two decades. This bill would take the claims out of the court system by compensating victims directly from the $140 billion fund created by manufacturing and insurance company payments.

Due to the size of the trust fund, the bill is expected to spend a significant amount of time on the Senate floor. Sen. Specter predicts that the bill will be backed by President Bush and supported on the floor by Majority Leader Bill Frist (R-TN). Sen. Jon Kyl (R-AZ), Sen. John Cornyn (R-TX), and Sen. Tom Coburn (R-OK) that voted in favor of the bill in the committee have stated that they will vote against the bill on the floor if it is not revised.

A provision in the bill provides special compensation for the citizens of Libby, Montana where W.R. Grace Company operated a vermiculite mine from 1963 to 1990 that was contaminated with asbestos. Sen. Lindsey Graham (R-SC) proposed an amendment to provide these same benefits for citizens living around the 28 processing plants across the country that received shipments from Libby. Although the amendment failed, it led to disturbing discoveries for Senators on the committee that found processing plants on their own state maps. "This is the first time in two years of working on this that someone has put a map in front of me with two big splotches in California," Feinstein said. "This is a potentially explosive issue.” (6/2/05)

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.

Abestos legislation in the 108th Congress focused on two key bills. One was Senator Patty Murray's (D-WA) bill called the Ban Asbestos in America Act S.1115, which would require the Environmental Protection Agency (EPA) to ban asbestos in two years, conduct a public awareness campaign about asbestos, invest in research 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. Henry Waxman (D-CA) introduced the companion bill HR 2277 in the House. The bill never made it out of the committee stage.

The other bill was the Fairness in Asbestos Injury Resolution Act of 2003, S.1125, sponsored by Senator Orrin Hatch (R-UT). The bill would establish a United States Court of Asbestos Claims, separate from the judicial system, which would disburse compensation to abestos victims through a privately funded publically managed trust fund. 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.

That bill hit a road block in the Senate when Senate Majority Leader Bill Frist (R-TN) and Minority Leader Tom Daschle (D-SD) failed to broker a compromise that would enjoy bipartisan support. Acording to EE Daily, "The two leaders have agreed to a $140 billion trust fund, which is $16 billion more than Frist and Hatch sought, but there was little consensus beyond that. Among the thorniest issues yet to be resolved is how much money companies who have exposed their workers to asbestos would have to front for the creation of a fund and where to draw the line on the number of existing asbestos tort claims that would be referred to the fund." The Majority Leader and Minority Leader Harry Reid (D-NV) will likely resume negotiations in the 109th Congress.

Additional information from the 108th 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 David R. Millar 2004 AGI/AAPG Fall Semester Intern and Anne Smart, 2005 AGI/AIPG Summer Intern

Background section includes material from AGI's Update on Asbestos for the 108th Congress.

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

Last updated on June 6, 2005.

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