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Senator Arlen Specter's Asbestos Trust Fund Bill.

May 2005 - - The FAIR Act of 2005 (S. 852/H.R.1360) is a national asbestos lawsuit settlement bill co-sponsored by Republican Arlen Specter of Pennsylvania and Democrat Patrick Leahy of Vermont. The bill will take asbestos victims claims out of the court system and force them into a federal trust fund. The $140 billion national settlement is being structured to end asbestos litigation. Without a national settlement, victims of asbestos exposure face dwindling legal options. Most can't sue in their own state's courts because illness caused by asbestos exposure may not show up for decades and state laws often require a person exposed to a toxic substance to sue within a few years of exposure. Abestos-related disease doesn't show up for decades.

The proposal includes some important improvements such as increases in award levels for some disease categories and a bar against any liens on workers compensation awards.

The Committee to Protect Mesothelioma Victims (CPMV) and the AFL-CIO oppose the bill. They believe the bill has a number of serious deficiencies that must be corrected despite recent changes that came as a result of stakeholder negotiations on the bill. Proponents and opponents support the establishment of a federal asbestos trust fund to compensate asbestos victims for their injuries through a no-fault system to replace the present civil litigation system. It is the level of funding in the bill that is in dispute. The AFL-CIO believes the fund would go broke before all victims had a chance for compensation. Both groups agree that federal legislation is necessary to deal with the high volume of litigation stemming from asbestos disease across the country,

According to opponents, the bill has a number of serious deficiencies that must be corrected. These include:

  • The elimination of compensation for a large group of lung cancer victims without allowing these individuals to document asbestos exposure through CT scans, and
  • the absence of remedies for victims during the startup period before the Fund is able to pay claims.

In addition, there are a set of issues, such as the statute of limitations, preemption and the treatment of claims if the Fund sunsets, that will determine whether the compensation system works as intended for deserving claimants. In 1979, lawmakers tried to correct the contradiction, but courts ruled that asbestos exception only applies to workers exposed after the law passed. By 1979, most workplaces had stopped using asbestos products.

Some conservatives beleve the $140 billion "Asbestos Trust Fund" will simply grow government, raise taxes, and line the pockets of trial lawyers under the guise that it will help victims of asbestos related illness.

 

Asbestos is a fibrous mineral that has been used as insulation and a fire retardant in a wide variety of products. Because of its durable, fibrous nature, asbestos can produce dust that, when inhaled, becomes deposited in the lungs. Asbestos in the lungs can cause or contribute to the development of illnesses including asbestosis (a fibrous scarring of the lungs) and mesothelioma (a malignant form of cancer in the lining of the chest or abdominal cavities).

Because of health concerns, all new uses of asbestos in the United States were banned in July 1989. That year, the EPA published the Asbestos: Manufacture, Importation, Processing, and Distribution in Commerce Prohibitions, the effect of which was to eventually ban about 94 percent of the asbestos used in the U.S. (based on 1985 estimates). Most asbestos uses established before that date are still allowed, but are now strictly regulated by the government. (See EPA-Asbestos General Information) EPA established regulations that require school systems to inspect for damaged asbestos and to eliminate or reduce the exposure by removing the asbestos or by covering it up. EPA regulates the release of asbestos from factories and during building demolition or renovation to prevent asbestos from getting into the environment. EPA has proposed a concentration limit of 7 million fibers per liter of drinking water for long fibers (lengths greater than or equal to 5 Ám).

The Occupational Safety and Health Administration (OSHA) has set limits of 100,000 fibers with lengths greater than or equal to 5 Ám per cubic meter of workplace air for 8-hour shifts and 40-hour work weeks.

Asbestosis is a serious, progressive, long-term disease of the lungs. An asbestosis diagnosis isn't cancer. Inhaling asbestos fibers that irritate and inflame lung tissues, causing the lung tissues to scar, causes asbestosis. The scarring makes it hard to breathe and difficult for oxygen and carbon dioxide pass through the lungs. Asbestosis generally progresses slowly. The latency period for the onset of a confirmed asbestosis diagnosis is typically 10-20 years after the initial exposure. The disease can vary from asymptomatic (no symptoms) to disabling and potentially fatal.

Asbestos is one of the leading causes of the lung cancers among nonsmokers. Asbestos lung cancer is a malignant tumor that invades and obstructs the lung's air passages. Cigarette smoking greatly increases the likelihood of a person developing asbestos lung cancer as the result of asbestos exposure. Most cases of asbestos lung cancer in workers occurred 15 years or more after the person was first exposed to asbestos.

Malignant mesothelioma is a rare form of cancer in which malignant (cancerous) cells are found in the mesothelium, a protective sac that covers most of the body's internal organs. Most people who develop malignant mesothelioma have worked on jobs where they inhaled asbestos particles. Most cases of the malignant mesothelioma are diagnosed 30 years or more after the first exposure to asbestos. Malignant mesothelioma has been diagnosed in asbestos workers, family members, and residents who live close to asbestos mines.

The Department of Health and Human Services (DHHS), the World Health Organization (WHO), and the EPA have determined that asbestos is a human carcinogen.

History Of Litigation

The first asbestos lawsuit was filed in 1966, in Beaumont, Texas. The defendants were eleven manufacturers of asbestos-containing insulation products, including Johns-Manville, Fibreboard and Owens Corning Fiberglas. The case proceeded to trial in 1969 and the verdict was returned in favor of the asbestos company defendants. The verdict was appealed and in 1973 the Fifth Circuit Court upheld the award (about $80,000 for the workers).

In 1974 a worker (Reba Rudkin) filed a civil suit against Johns-Manville after developing asbestosis after working for 29 years at the manufacturing plant in Pittsburg, California. The company would normally be protected from such a lawsuit because workers' compensation is the exclusive remedy for an employee suing an employer. But the lawyers argued that Manville and its executives should not be shielded from fraud and conspiracy charges. Evidence of fraud and conspiracy emerged when it was discovered letters disclosed that these companies conspired to suppress knowledge about the hazards of asbestos.

By 1981 a major victory was won against against Johns-Manville, when the California Supreme Court ruled that workers could sue their employers when circumstances like those in Rudkin applied. This enabled other Pittsburg plant workers to proceed with their cases in civil court against their employer, Johns-Manville. In February 1982, a verdict of $150,000 was granted against Johns-Manville. This case marked a "threshold in asbestos litigation" because it gave rise to a number of punitive damage verdicts against Johns-Manville. In August 1982, Johns-Manville filed for Chapter 11 bankruptcy protection to avoid paying compensation to the growing number of victims of diseases caused by exposure to its asbestos products.

Unfortunately, several other asbestos companies - Eagle Picher, UNARCO, Amatex, H.K. Porter, Carey Canada, Celotex, and Raybestos Manhattan/Raymark - followed Johns-Manville's lead into the bankruptcy courts. Within a few years, the entire asbestos textile industry was in bankruptcy, as were several major asbestos insulation manufacturers. The bankruptcies and other changes did not halt litigation on behalf of victims of asbestos-related disease, but they did make it much more complex and diverse, and the litigation was pushed in divergent directions.

At the same time, the patterns of asbestos disease started coming from different industries:

  • Workers at asbestos mines and factories. This was reflected in the litigation against the major asbestos manufacturers, in particular, on behalf of workers at their plants.
  • Workers injured by exposure at sites where the asbestos-containing products were installed, such as at shipyards, refineries, railroads and power plants;
  • Workers injured by asbestos exposure in the construction industry. They were exposed to different products - such as fireproofing sprays, drywall products, textures, and other asbestos-containing construction materials.

Thus, at the same time that manufacturers filed for bankruptcy, new defendants were brought into the litigation. These new defendants often included contractors, distributors, and the owners of premises like refineries and power plants.

Legislation & Regulations: The U.S. Has NOT Banned Asbestos

Senator Patty Murry (D-Wash) The Ban Asbestos In America Act of 2003 (S.2641)

Congressman Henry Waxman (D-CA) Ban Asbestos In America Act of 2003 (H.R.2277)

Newspaper and magazine articles, Internet information, and currently available (but outdated) documents from the EPA and other federal agencies may contain incorrect statements about an EPA asbestos ban.

In 1989 The Environmental Protection Agency (EPA)  banned  U.S. manufacturing, importation, processing, or distribution in commerce of many asbestos-containing product categories.

In 1991 much of the original  "Asbestos Ban and Phase out" rule was set aside by the U.S. Fifth Circuit Court of Appeals. 

The EPA has published a clarification of the Asbestos Ban and Phase Out on the EPA headquarters Asbestos web site, under Additional Asbestos Information and then Status of EPA's Asbestos Ban .  Please refer to the full document for more information. Some descriptions of banned and non-banned Asbestos Containing Material products and uses from the clarification are:

Banned under the Clean Air Act:

  • Most spray-applied Surfacing ACM
  • Sprayed-on application of materials containing more than 1% asbestos to buildings, structures, pipes, and conduits unless the material is encapsulated with a bituminous or resinous binder during spraying and the materials are not friable after drying.
  • Wet-applied and pre-formed asbestos pipe insulation, and pre-formed asbestos block insulation on boilers and hot water tanks.

Banned under the Toxic Substances Control Act:

  • Corrugated paper, rollboard, commercial paper, specialty paper, flooring felt, and new uses of asbestos.

Product categories that are no longer banned under TSCA include

  • Asbestos -cement corrugated sheet, asbestos-cement flat sheet, vinyl-asbestos floor tile, asbestos-cement shingle, and millboard
  • Asbestos clothing
  • Asbestos-cement pipe and pipeline wrap
  • Automatic transmission components, clutch facings, friction materials, disc brake pads, drum brake linings, brake blocks, and gaskets
  • Non-roofing coatings, roofing felt, and roof coatings.

EPA has no existing bans on most other asbestos-containing products or uses.

EPA does NOT track the manufacture, processing, or distribution in commerce of asbestos-containing products. It would be prudent for a consumer or other buyer to inquire as to the presence of asbestos in particular products. Possible sources of that information would include inquiring of the dealer/supplier or manufacturer, refer to the product's "Material Safety Data Sheet" (MSDS), or consider having the material tested by a qualified laboratory for the presence of asbestos.

For further EPA information:

EPA TSCA Assistance Information Service at 202-554-1404

EPA Regional Asbestos Coordinator for Washington State: Kathleen S. Johnson at 206-553-1757 or FAX 206-553-0110 or Email (johnson.kathleens@epa.gov).

The Consumer Product Safety Commission (CPSC)  banned asbestos use in several consumer products. The Federal Register listing banned asbestos items is available from the Code of Federal Regulations website at: http://www.access.gpo.gov/nara/cfr/cfr-table-search.html  Asbestos bans are found in Title 16 Commercial Practices, Chapter II Consumer Product Safety Commission, parts 1304 (consumer patching materials), and 1305 (artificial fireplace ashes and embers).

 CPSC Hotline information, at 1-800-638-2772.