Libby provision back in FAIR

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) agreed last week to additional protections for Libby residents in asbestos reform legislation being considered this week by his panel.

The provision takes Libby residents one step closer to getting compensation from exposure to deadly tremolite asbestos fibers that contaminated the vermiculite mined and milled here for more than 60 years.

It is the second time that language has been added to the controversial Fairness in Asbestos Injury Resolution Act of 2005. In April language supporting the Libby asbestos victims was weakened when bill supporters expressed concerns that the Montana beneficiaries would receive an easy payday.

Montana Senators Max Baucus and Sen. Conrad Burns have been working to secure a provision for Libby victims because medical criteria in the bill would have eliminated all but about 90 percent of those diagnosed with a variety of asbestos-related ailments as a result of W.R. Grace's nearby mining activities.

Grace filed for bankruptcy in 2001 citing legal liabilities nationwide related to asbestos contamination. The Fair Act is designed to relieve corporations of asbestos-related liabilities, which has forced numerous companies in bankruptcy. The act establishes a trust fund, paid for by the asbestos companies and their insurers, to compensate individuals diagnosed with asbestos-related disease, eliminating their right to sue the companies.

The problem for Libby vicitms was that the medical criteria in the bill was established for people suffering from chrysotile exposure which results in disease that progesses differently than with disease from exposure to tremolite asbestos.

Baucus has been pushing hard for favorable language for Libby victims. He and Buns have threatened to withhold support of the bill unless such an amendment was added.

The bill was originally slated for "markup" at the end of April before it is voted on and released to the Senate floor. However, more than 80 amendments were presented to the judiciary committee to consider and the effort became bogged down until recently.

The provision accepted by Specter on May 19 will help ensure every person in Libby who is sick from asbestos gets at least $400,000 in compensation, Baucus said.

"We got everything we wanted for Libby and more," he said. "It wasn't easy, but I was confident all along we'd get folks in Libby the compensation they need and deserve in this bill. And it's about time."

Baucus has been working with Specter on the Libby provisions for months. He got word Tuesday that his final language ensuring protections for Libby residents was included.

"We had to go back to the chairman several times to ensure everyone in Libby who is sick gets compensated," Baucus said. "We are finally there - with a common-sense package that all parties are supportive of."

The so-called Libby Fix now includes:

* Libby claimants are exempted from the exposure criteria in the bill - they just have to establish that they lived, worked or played within a 20-mile radius of Libby for any 12-month period prior to Dec. 31, 2004;

* Libby claimants are exempted from the bill's medical criteria if they choose to have their claims referred to an expert Physician's Panel;

* The bill would also establish basic medical criteria applicable only to Libby claimants to ensure that the Physicians Panel will treat the Libby claimants fairly;

* If the Libby claimants comply with the Libby-specific medical criteria, they will receive a Level 4 award, or $400,000, essentially establishing a floor of compensation of $400,000 for sick Libby claimants;

* The language would also provide a mechanism to ensure that if a Libby claimant with a non-malignant asbestos-related disease became sicker, they could apply to the fund again for the higher Level 5 award, which is $850,000.

"I think it is really important to recognize that the needs of Libby residents have only been considered in asbestos litigation reform negotiations because Max Baucus had the foresight and the ability to bring this to the attention of Congress again and again," said Milton Datsopoulos, a Missoula attorney working with the legal team representing more than 400 asbestos victims in Libby.