Sen. Murray to Sen. Hatch: Cure the Disease by Banning Asbestos, Funding Research
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May 30, 2003
The Honorable Orrin G. Hatch, Chairman
Dear Senator Hatch: I am writing regarding your ongoing efforts to seek a legislative solution to the large number of asbestos-related claims now pending, and expected to be filed, in the U.S. courts. While I certainly applaud your leadership and outreach to all the various interest groups involved, I have some concerns about the legislation you introduced last week. As you know, I have been working to ban the use and importation of asbestos in the United States for several years now. On May 22, 2003, I reintroduced the Ban Asbestos in America Act, S. 1115. I hope you will consider supporting this important legislation in part because my bill will help end the ever-expanding universe of asbestos-harmed individuals who seek compensation. In the long run, if we are going to end the legacy of disease created by exposure to asbestos, we must do a better job protecting workers and consumers from asbestos exposure in the first place. An important step in this direction is to ban asbestos fully in this country, which the Environmental Protection Agency (EPA) tried to do in 1989. I also want to share with you the recent findings of an asbestos Focus Group commissioned by the EPA. This panel, which included many representatives from industry, supports a ban on the production, importation and distribution of asbestos in the United States. I am enclosing a copy of the Asbestos Strategies report for your information. Regarding asbestos litigation reform efforts, I recognize that you and your staff have dedicated many hours toward developing a solution to the thousands of asbestos-related cases now pending in the courts. I share your interest in creating a more cost-effective and streamlined means of resolving these cases. However, your legislation as introduced raises several concerns I would like to share with you. Compensation for Non-Occupational Exposure First, I am concerned that the Fairness in Asbestos Injury Resolution Act, S. 1125, does not include a compensation mechanism for people who have experienced non-occupational exposure to asbestos. I first became involved in asbestos issues after reading in the Seattle Post-Intelligencer about asbestos exposure in Libby, Montana. I am concerned that S. 1125 does not address compensation for those in Libby exposed to asbestos in and around their homes. Vermiculite from Libby was shipped to hundreds of sites around the country for use, processing and distribution. EPA has determined that 14 of these sites remain so contaminated with asbestos that they still need to be cleaned up. As many as 35 million homes, schools and businesses may contain asbestos-tainted insulation made with vermiculite from Libby. Just last week EPA and the Agency for Toxic Substances and Disease Registry launched an education campaign warning people not to disturb vermiculite attic insulation if it is in their homes because it could generate dangerous airborne concentrations of asbestos. I believe that any asbestos liability compensation system must include a fair mechanism for dealing with non-occupational exposures to asbestos, too. I am concerned that S. 1125 is too limited in its scope. I understand your emphasis on workplace exposure, which is where the greatest exposures to asbestos have occurred historically. According to the Occupational Safety and Health Administration, 1.3 million workers still face significant asbestos exposure on the job. However, we must not forget that asbestos exposures can take place in many other environments, and the FAIR Act should reflect this fact. If companies that used asbestos in their products are going to be shielded from liability, we need to ensure that a compensation system is flexible and broad enough to respond to the many different types of exposure to asbestos that can take place. Compensation must be available not only for the mechanics, builders and factory workers suffering from asbestos diseases, but also for people who have asbestos diseases simply from working on their cars or homes, or from growing up in Libby. Therefore, I cannot support legislation that simply codifies the medical and exposure criteria in the Manville Trust and applies these criteria to all pending asbestos cases. I believe the key determinant factor to decide which people receive compensation should be asbestos disease diagnoses. Appropriate Medical Criteria I also am concerned that S. 1125 incorporates overly restrictive medical criteria. For example, in order to qualify for inclusion under Level I, Asymptomatic Exposure, victims would have to demonstrate bilateral asbestos-related non-malignant disease. This is defined in the legislation as a diagnoses based on an x-ray reading of 1/0 or higher on the ILO scale or an x-ray showing bilateral pleural plaques or pleural thickening, bilateral interstitial fibrosis, or bilateral interstitial markings. However, in a letter to American Bar Association President-Elect Dennis Archer, the President of the American Thoracic Society, Dr. Thomas Martin, pointed out that "Significant asbestosis can be present with an x-ray profusion less than 1/0 or even with a normal x-ray." This is just one example of the many concerns that have been raised about specific medical criteria. As you know, there was considerable outcry from members of the medical community following the ABA’s adoption of medical criteria for non-malignant asbestos-related diseases in February. I understand that ATS is about to endorse a new set of standards for diagnosing asbestos-related diseases. I would strongly urge you to base the medical criteria in S. 1125 on these standards, which will reflect the latest recommendations from the medical doctors with the expertise to identify and diagnose different types of asbestos diseases. Total Size of the Trust Fund and Compensation Levels I am concerned the $108 billion cap created by S. 1125, without a backstop mechanism, cannot ensure that all present and future parties harmed by asbestos will receive adequate compensation. Given what I have read about the projected liability of the defendants and their insurers, the total amount for the fund in your legislation seems low, especially if you consider that people are still being exposed to dangerous levels of asbestos. As you know, several analysts have estimated that the insurers’ and defendants’ overall liability exceeds $200 billion. According to recent analysis by Tillinghast-Towers Perrin, the total cost is expected to be at least $200 billion. The Rand Institute for Civil Justice has also estimated the future costs of asbestos liability to be $145 to $210 billion. I understand that all prior projections have turned out to be too low, so we cannot be confident that even these numbers accurately reflect the likely total costs of exposure to this deadly mineral. I also understand that there has been some discussion about a possible backstop funding mechanism. Given the continuing uncertainty of how many workers and consumers will ultimately be diagnosed with asbestos diseases, a backstop funding mechanism may make sense. Such a system would provide some much-needed certainty to the companies currently facing large liability exposure. At the same time it would ensure asbestos victims and their families, who have not yet shown symptoms, will still be able to obtain the medical monitoring and other financial and medical assistance they need in future years. I do not support the approach of limiting the total cost of asbestos claims to $108 billion by including inadequate levels of compensation for asbestos victims. It is never easy to ascribe a dollar figure to provide compensation for impaired health and premature death, but the various funding levels in S. 1125 seem too low. I hope you will strongly consider making upward adjustments in the compensation levels as you negotiate changes to the FAIR Act, especially for those disease categories allocated no funding at all under S. 1125. Preventing Future Exposures and Treating Sick Victims Finally, I believe any comprehensive legislative approach absolving corporate America of future asbestos liability must include some key elements which are currently absent from S. 1125. There must be a renewed effort to protect workers and consumers from future exposures to asbestos. The value of prevention cannot be overstated when it comes to asbestos exposure. This means banning asbestos by passing the Ban Asbestos in America Act. This also means increased funding for the federal and state agencies tasked with implementing the regulations to protect workers from dangerous working conditions involving asbestos. We must renew our commitment to preventing the creation of future asbestos victims. In addition, I believe we must strengthen research efforts and improve treatments for the diseases caused by the deadly mineral, especially for mesothelioma. I look forward to working with you and other members of the Senate Judiciary Committee to finalize a proposal that will be fair to all the parties involved, including former asbestos workers and their families. Sincerely,
Patty Murray
Enclosure
>>> Click Here for a Critical Summary of Asbestos Trust Fund Bill S.1125 *** POSTED JUNE 2, 2003 *** |