Fairness in Asbestos Injury Resolution Act of 2004-Motion to Proceed

FAIRNESS IN ASBESTOS INJURY RESOLUTION ACT OF 2004-MOTION TO PROCEED

Mrs. MURRAY. Madam President, I rise today to share my serious concerns with the asbestos liability bill now before the Senate. As my colleagues know, this is not just another bill for me. This is something I spent years learning about, educating my colleagues about, and writing legislation to address.

In fact, my work on asbestos started 3 years ago this very month when I asked the Senate HELP Committee to hold a hearing on asbestos exposure in the workplace.

I started this as a very lonely battle with my good friend, Senator Paul Wellstone. We held press conferences, and it seemed like no one came. Senator Baucus and Senator Cantwell were with us, but it was a very lonely fight.

That is why today it is so great to watch my colleagues, such as Senator Daschle, Senator Reid, Senator Dayton, and Senator Leahy moving this discussion to such a productive level. They have taken the time to listen to the victims, and I think if everyone did, we would have a much more balanced bill in front of us today.

I am pleased that after working all these years with the victims, family members, and doctors, the full Senate is now engaged in a debate about asbestos. I am also pleased that many of the issues I have been fighting for have been included in this legislation. This bill does include a modified ban on asbestos, similar to the original ban that I first introduced 2 years ago. That is an important acknowledgment of what I told the Judiciary Committee did last June:

If Congress is going to prevent any future lawsuits, then Congress must try to prevent any more asbestos casualties, by banning the use of asbestos.

So I am pleased by some of the progress in this bill, but I am also deeply disturbed by what this bill will do to people whose lives have been torn apart by asbestos, to future victims, to family members, and to average Americans who are being exposed to deadly asbestos every day without even knowing it. After listening to the victims, hearing their stories, looking them in the eye, there is no way I could vote for this inadequate and unbalanced bill today.

As I have learned about asbestos over the past 3 years, I have been troubled by the duplicity of some of the companies, by the negligence of our own Government, and by the absolute horror that asbestos inflicts on people. Throughout this process, I have also been touched by the commitment and the optimism of victims. Some of them realize it is too late for them, but they want to make sure no other American goes through the horror they have experienced.

After working with them, I know I am not just standing on the Senate floor as a single Senator. I am standing here on behalf of all of the people I have been honored to meet and stand with over the past 3 years.

I am standing here on behalf of people like Brian Harvey, Gayla Benefield, Bret Williams, Ralph Busch, Marv Sather, and George Biekkola.

They were all exposed to asbestos through no fault of their own.

I am standing here on behalf of the family members of asbestos victims, people like Sue Vento, the wife of the late Congressman Bruce Vento of Minnesota; Sue Harvey, and LTC James Zumwalt, the son of Navy hero Elmo Zumwalt.

I am standing here on behalf of doctors who have labored to save their patients against a merciless killer, doctors like Michael Harbut, Alan Whitehouse, and Harvey Pass who not only provided medical care but worked to raise awareness and call for needed research.

I am standing here on behalf of public health leaders like Dr. Richard Lemen, a former Assistant Surgeon General of the United States; Dr. Phil Landrigan, and people like Andrew Schneider and Barry Castleman who have worked to warn the public about these dangers.

I am standing here on behalf of researchers and advocates, people like Chris Hahn of the Mesothelioma Applied Research Foundation and advocates at the Environmental Working Group.

All of these people have stood with me at press conferences and have testified before Senate hearings, calling for us to help the victims and to ban asbestos. We have a real obligation to them.

I am standing on the Senate floor today to make sure the Senate does right by people who have been wronged.

Let me share one of their voices with my colleagues. In July 2001, the HELP Committee held that hearing that I requested on workplace safety and asbestos exposure. One of the witnesses was Mr. George Biekkola of Michigan, a World War II veteran and a community leader who helped bring a hockey rink to the children of his community.

Those of us who were at that hearing 3 years ago will never forget what he said. He broke down several times as he read his statement, but his message was clear. He told us he had spent 30 years working at the Cleveland Cliff Iron Company in Michigan. He operated a hard rock drill and was exposed to asbestos dust. He was forced to retire at the age of 60 because asbestos had scarred his lungs and reduced his lung capacity by one-third. At that hearing, he told us:

I thought I'd be spending my retirement traveling out West with my wife, hunting deer up in the mountains. But today I can't.

He said he could not exert himself because his heart was weak and that he had to be careful because a simple case of pneumonia could kill him. He told us:

This isn't how I thought I'd be spending my retirement, but when I think about the other guys I worked with-I guess I came out lucky.

He said:

I'm here today to tell you my story so that maybe someone else working in a mine or a brake shop or a factory won't lose the things I have lost.

He concluded his statement with these words:

Senators, please make sure that what happened to me won't happen to anyone else. . . . Workers like me are counting on you to protect us. Please don't let us down.

I am sad to report that George Biekkola died 2 weeks ago today from asbestosis and mesothelioma. Until the end, he was looking out for other victims. In fact, at his funeral last Saturday his family displayed a photograph of him testifying at that Senate hearing.

George is not with us today, but his words ring as loudly now as they did 3 years ago: Senators, do not let us down.

That is why I have been working on asbestos for the last 3 years and that is why I cannot support this inadequate bill. After all the things that Americans like George Biekkola have been through, after all they have lost, after all their families have lost, after all they have done to protect others, I will not let them down, and that is why I cannot support this bill.

Before I turn to the specifics, I want to put this discussion in context. For decades we have been pumping this poison into Americans, on purpose and by accident. It has wrecked lives, families, and fortunes, and it has been a problem for many businesses. Asbestos is everywhere, and it is killing us. We have to stop putting this killer in products. We have to stop importing products that contain asbestos. We have to figure out a way to make whole everyone who has been affected by this epidemic, and we need to do it in a balanced way that gives certainty and equity to both victims and to companies.

This process has been an education for me because like many Americans I thought asbestos had been banned a very long time ago. In 1989, the EPA did try to ban asbestos, but that effort was overturned in a lawsuit from the asbestos industry. Ten years later, in 1999, reporter Andrew Schneider and the Seattle Post-Intelligencer published articles about a disturbing trend in a small mining town of Libby, MT. Residents there are suffering from extraordinarily high rates of asbestos-related disease. At many plants where vermiculite from Libby was processed and then shipped, waste rock left over from the expansion process was given away for free. I learned that people used this free waste rock in their yards, in their driveways, and in their gardens.

This picture that I have with me today is Justin and Tim Jorgensen. They are climbing on waste rock that was given out by Western Minerals, Inc., in St. Paul, MN, some time in the 1970s. According to W.R. Grace records, this rock they are playing on contained between 2 and 10 percent temuline asbestos. This rock produced airborne asbestos concentrations 135 times higher than OSHA's current standards for workers.

We need to do right by Justin and Tim, and those are the people I think about when I look at this bill.

I learned, in fact, that our country is far behind others. The United States remains the only industrialized country besides Canada that has not yet banned asbestos. More than 30 million pounds of asbestos are still today right now consumed in the United States each year. I learned that asbestos is still found today in over 3,000 common products in the United States, including baby powder, cosmetics, brake pads, pipes, hairdryers, ceiling tiles and vinyl flooring.

It is still legal in 2004 to construct buildings with asbestos cement shingles and to treat them with asbestos roof coatings. It is still legal today to construct new water systems using asbestos cement pipes imported from other countries. It is still legal today for cars and trucks to be made and serviced with asbestos brake pads and linings. Workers in this country are still being exposed to dangerous levels of asbestos. According to OSHA, an estimated 1.3 million employees in construction and general industry face significant asbestos exposure on the job today. Asbestos, in fact, has taken a particularly large toll on the people of my State.

According to a recent report by the Environmental Working Group, King County has the fourth highest number of deaths related to asbestos in the country. Three other counties, Kitsap, Pierce, and Snohomish, all rank in the top 100 for asbestos-related deaths. Overall, Washington State ranks eighth in asbestos-related deaths nationwide. Just last week in Spokane, WA, our State department of health announced that 100 former workers at a vermiculite factory likely inhaled deadly asbestos fibers and should seek advice from their doctors. They also warned that children and spouses who lived with those workers could become ill from particles that were carried home with the loved ones on their clothing, on their hair, and their skin.

Given the known dangers of this mineral, we should all be asking why are we still using it? Why are we still adding it to products on purpose where there are perfectly acceptable substitutes? Americans in every walk of life and in every corner of this country have been exposed, and we have to protect them. That is why I have worked to do a series of things over the past few years.

On June 18 of 2002 I introduced the Ban Asbestos in America Act. I reintroduced that bill again last May as S. 1115.

I do thank all the Senators who have cosponsored my bill: Senators BAUCUS, BOXER, CANTWELL, DASCHLE, DAYTON, DURBIN, FEINGOLD, FEINSTEIN, HOLLINGS, JEFFORDS, LAUTENBERG, LEAHY, and REID.

I have pushed the EPA to warn homeowners about the dangers of Zonolite insulation, which today is in the attics of as many as 35 million homes, schools, and businesses.

I have urged the EPA to warn brake mechanics about the deadly asbestos dust they are exposed to on the job today.

I have asked OSHA to increase its efforts to enforce existing regulations that attempt to protect automobile brake mechanics.

I have shared my concern with legislators in Canada, the country that is the largest source of America's asbestos imports.

I testified at a hearing on Libby, MT, and I testified before the Judiciary Committee last July.

Asbestos liability is a real problem. It is a problem for victims, and it is a problem for companies. We need a balanced solution.

Unfortunately, the bill that is before us today falls short in six ways. First of all, it is unfair to victims because the awards are too small, even smaller than many would get if they were allowed a day in court.

Second, it could lock future victims out of getting help because the trust fund is inadequate.

Third, it keeps Americans in the dark about the dangers of asbestos. It does not include the education campaign that we know is needed and that I have been pushing for over the past 3 years.

Fourth, it falls short on research, tracking, and treatment for asbestos diseases.

Fifth, it makes family members jump through too many restrictive hurdles.

And sixth, it allows insurance companies to place liens on the awards family members receive, unfairly reducing the award they deserve, and treating them much differently than other Federal compensation programs.

Let me take a few minutes to discuss each of those in detail. First of all, as I said, the awards are too small. Many people who had their lives torn apart by asbestos will actually do worse under this bill than they would in court. For example, awards for lung cancer victims who have more than 15 years of exposure to asbestos are limited to $25,000 to $75,000, even though most of those victims will die within a year.

Victims with asbestosis who have lost 20 percent to 40 percent of their breathing capacity, many of whom will be disabled for life, will receive only $85,000. That is far less than their lost wages and medical costs. This bill gives them less than they deserve. At the same time, it blocks the courthouse door to victims who have staggering medical bills, lost wages, and other damages. I do not see how Congress can leave asbestos victims worse off than they are today, but that is what this bill will do.

Second, the trust fund is too small to compensate all the victims, but that is just one of the problems with this trust fund. I believe a successful trust fund will provide fair and adequate compensation to all victims and would bring reasonable financial certainty to defendant companies and insurers. To do that, the trust fund must include four things: Fair award values, appropriate medical criteria, adequate funding, and fast processing.

The system for processing claims must allow victims to get prompt payments, without the complications, time, and expense of a traditional lawsuit. Unfortunately, the trust fund in this bill falls far short of what is needed. I have already discussed how the award values are unfair.

In addition, the trust fund is not adequately funded. In fact, the trust fund in this bill has been slashed dramatically from the original Hatch legislation. In the Judiciary Committee's bill the trust fund was $153 billion. But in this bill we are being asked to vote on the trust fund has been slashed by over $40 billion.

Now, the trust fund didn't shrink on its own. It was reduced after closed-door negotiations that included only one side, the defendant companies and the insurance industry. It was not based on the actual needs of victims. Instead, it was based on what the insurers and businesses were willing to pay. This one-sided agreement reduced the funding provided in S. 1125 by more than $40 billion.

Making matters worse, an additional $10 billion in contingent funds does not become available for 24 years. The Senate should not adopt a policy of adjusting award values just to meet an arbitrary and artificial limit reached in a back room with only one side present.

Not only was this figure arrived at in an unfair way, but it is clear it is not enough to meet the needs of current and future asbestos victims.

The Congressional Budget Office has estimated the cost of this bill at $134 billion. This bill provides only $109 billion. So there is a significant shortfall already. But there is very good reason to believe this shortfall will be even larger. Recent claims in the Manville trust show much higher than expected claims for many asbestos diseases. Those claims also show that recent mortality and morbidity data increase the likelihood that the number of asbestos-related diseases and related claims will exceed current estimates.

If this fund becomes insolvent it will leave victims without the help they deserve and without the help they need. Because of that possibility, last year Senators inserted a number of protections during the Judiciary Committee markup. Tragically, very tragically, the bill before us today throws away all of those carefully crafted bipartisan protections.

For example, we had protections for victims in case the trust fund became insolvent. Those protections in the Biden amendment were stripped from this bill.

We had protections that guaranteed that asbestos victims would preserve their legal rights until the trust fund is operational. That is important because if this bill becomes law, it will end up in court and there will be no mechanism for victims and their families to get help while this law is tied up in court. We solved that problem with the Feinstein amendment, but again those protections were stripped from this bill.

So overall this trust fund is inadequate. If we are going to lock the courthouse doors to victims, we have to be 100 percent certain the trust fund will have enough money to cover all of the 600,000 current claims and the thousands more that may be found later. This is especially important because asbestos diseases have a very long latency period, often decades long, making it hard for us to predict today who will need help in the future. If we pass this inadequate trust fund, my constituents and hundreds of thousands of Americans will be left out in the cold with only the fading memories of their loved ones to carry them through this tragic ordeal.

My third concern with this bill is it keeps Americans in the dark about the dangers of asbestos exposure. This bill completely drops the education campaign that was in both of my asbestos bills. One of the reasons why asbestos takes such a deadly toll is because people are unaware that they're being exposed to it.

Ralph Busch, a constituent of mine, exposed himself and his wife to asbestos when he renovated his home. He never knew about the dangers until he happened to read a story in the Seattle Post-Intelligencer. Today, his dream house is abandoned, his credit is ruined, and his health is a constant worry. Ralph Busch didn't do anything wrong. He couldn't have known about the danger of Zonolite insulation. There is no way that Ralph Busch could have known that by buying and renovating an old house he would eventually expose his family to dangerous levels of asbestos.

We must make sure others do know about this public health risk by providing additional resources to educate the American public about the dangers of worksite and home exposures to products that contain asbestos.

We must also provide safety information to homeowners on what they can do to prevent asbestos exposures at home, particularly in the attic and basement.

In addition to homeowners, many workers are exposed to asbestos on the job. Often they are not aware of the danger, and they don't have the protective equipment they need.

I am heartened to hear that EPA, ATSDR and NIOSH are now proactively reaching out to consumers and workers to warn them to stay away from vermiculite attic insulation. But, I am very concerned that the EPA, prodded by a request from the law firm of the former acting agency administrator, is considering revising its "Guidance for Preventing Asbestos Disease Among Auto Mechanics" to convey the false impression that brake repair work is no longer a risk.

Clearly, any effort by the EPA to downplay these risks flies in the face of current congressional intent regarding the inherent health problems with exposure to asbestos in the workplace. I sincerely hope that EPA will not bow to the pressure of the industry and in fact strengthen its guidance for brake mechanics.

My fourth concern is that this bill does not do enough for research, tracking and treatment.

I want to thank Senator HATCH for including some modest resources in his latest version of the bill-which should be used to establish mesothelioma research and treatment centers around the country. Yesterday I was pleased to hear Senator HATCH say that he would be willing to explore additional funding for asbestos research and treatment centers. These centers will be critical as the medical community works to develop new treatments and protocols for the variety of deadly cancers and diseases that exposure to asbestos brings to workers and their families.

Unfortunately, not included in S. 2290 are the resources needed to track the victims of mesothelioma and other asbestos causing cancers, and to conduct additional research about the harmful effects of this deadly material.

These are areas that doctors and other experts have told me time and again we must invest in. I heard from some of those doctors last month at a press conference I held, which Senator REID and Senator DAYTON attended. At the press conference, Dr. Bret Williams of North Carolina said, "As a doctor, a cancer patient, a husband and father, I am asking my government to take a stand. Fix the problem. Give us hope. Fund a mesothelioma research program. Please invest in a cure."

A surgeon from Detroit, Dr. Harvey Pass, told us that progress on asbestos diseases requires funding, and he said that funding, "remains absolutely insufficient to set up the type of collaborative approaches that already exist with lung cancer, breast cancer, prostate cancer, and colon cancer."

The fourth problem with this bill is its inadequate support for research, tracking and treatment of asbestos diseases.

My fifth concern with this bill is the way it treats family members. Under this bill, family members of victims will be forced to jump through an additional series of hoops, reducing the likelihood they will ever receive an award.

Let us remember that these family members have lost loved ones. In many cases they are vulnerable themselves because they came into contact with asbestos fibers through a family member. Take the case of Susan Lawes. Her father was a pipe fitter and was exposed to asbestos on the job. When he came home from work, asbestos fibers were still on his clothes. He would walk through the door after the end of a long day and give his daughter a hug. Last month, Susan was diagnosed with an asbestos disease. As she told me," I am literally dying because I hugged my dad."

Susan and many people like her are not treated fairly under this bill. The children and the spouses of workers should not have to prove five years of exposure to asbestos from their husbands and fathers as they would under this bill. They also should not be forced to appear before a special Physicians Review Board in order to determine their medical condition and whether they are eligible for a compensatory award.

It is the same for people in Spokane, WA. Spokane is one of the 22 sites that EPA has determined is still contaminated. Why are we forcing these innocent victims of take-home asbestos exposure to jump through extraordinary hoops to determine their eligibility of an award?

My fifth concern is the unfair way this bill treats family members-making them jump through hurdles that reduce the chance they will ever get the help they need.

Finally, this bill allows insurance companies to reduce any awards that victims actually receive-something that is not found in similar federal plans.

This bill allows insurance companies to place liens on the awards that victims and family members receive.

I find it unconscionable that health insurance companies and other entities can recoup their costs by placing liens on the awards family members receive in compensation for their loss of a father, a husband, a son or a daughter.

These workers were often the only breadwinners in their households, but this bill tells their surviving family members that they can be sued by their health insurance provider for a substantial part of an award-an award that as I've shown may already be inadequate.

What is especially disturbing is other federal compensation programs do not allow this type of action, but for some reason, asbestos victims are being given fewer protections. For example, the awards provided to victims in federal compensation programs like the Radiation Exposure Compensation Act, the Energy Employees Occupational Illness Compensation Program Act and the Ricky Ray Hemophiliac Relief Fund Act are not subject to liens by workers compensation insurers. I don't know why the authors want to treat asbestos victims differently, but I do know that it is not fair, and it's one of the reasons why I can't support this bill.

In the end, this bill falls far short of what victims deserve. The awards are too small. The trust fund is inadequate. It fails to educate Americans about the dangers of asbestos. It falls short on research, tracking and treatment for asbestos diseases. It puts unfair burdens on family members, and it allows insurance companies to reduce a victim's award.

I have been fighting on this for years, and it makes no sense that we could squander this moment with a bill that is so inadequate. George and Gayla and Ralph and Marv and Bret and Brian deserve so much better, and I will continue to fight for them.

Regardless of what happens with this bill, the one thing we must do is ban asbestos, and I assure my colleagues that I will keep fighting for that. I do want to pass a law. We need a real solution. I don't want companies going bankrupt. I don't want victims going without the help they need. I still think we can do it, and I will continue to fight for a balanced and fair bill that will do right by victims across the country. We have an obligation to them and their families. I have been fighting for them for the last 3 years. No matter what happens this week, I am not going to stop now.

I yield the floor.