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FAIR faces big hurdle in Senate

| February 23, 2006 11:00 PM

By ROGER MORRIS Western News Publisher

Before an asbestos bill is brought up for another vote, U. S. Senate Majority Leader Bill Frist, R-Tenn., said 60 senators must pledge to help it overcome a procedural hurdle that halted the bill's progress last week.

The Fairness in Asbestos Injury Resolution Act, which would create a $140 billion trust for asbestos victims, was shelved on Feb. 16 when it failed to garner 60 votes in a procedural vote brought by a senator's objection that the bill violated budget rules. The measure failed to progress by a vote 48-51.

The Senate is on a short recess until next week. Montana Senators Max Baucus, a Democrat, and Conrad Burns, a Republican, have been working together tenaciously to see that the measure passes because of language establishing a "Libby fix" for 1200 to 2200 asbestos victims of W.R. Grace's former vermiculite mine and processing plants in the Libby area. The vermiculite was contaminated with toxic tremolite asbestos.

The bill was initially started more than 7 years ago to resolve the growing logjam of asbestos liability suits across the nation. As companies were offered an escape from their liability, a trust fund for asbestos victims evolved. Originally, Libby's victims of tremolite asbestos did not meet the medical criteria under the wording establishing that fund. Baucus introduced the so-called "Libby fix" to include them. However, when the bill passed from the judiciary committee to the full Senate, language was stripped from it eliminating a diffused lung capacity test (DCLO). Without the test, which measures the amount of oxygen that transfers from the lungs to the bloodstream, a significant number of Libby victims wouldn't qualify for the Libby fix.

Burns introduced an amendment to the bill nearly three weeks ago and with Baucus' help has been lobbying for both it and the overall bill.

Opposition to the asbestos bill comes from insurance companies concerned about the lack of certainty as to how much money they would have to contribute to the trust fund, from other senators concerned about the Libby fix not being extended to communities in their state which received vermiculite ore from Grace's Libby operations as well as senators concerned that the trust fund was not big enough to settle all claims and the federal government would become responsible.

"This poor old bill has been beaten up so badly, it's where we were seven years ago," said Gayla Benefield, local victims advocate. "We had to beat it down because we wanted to retain the right to sue. Grace took that away from us when they filed for bankruptcy."

California wants the bill to die so victims retain a right to sue, and one of their senators believes Libby is taken care of in the trust fund's medical criteria so there is no need for a special fix, Benefield said.

"The part that really bothers me is the word wait," said Les Skramstad. "If we wait any longer we're going to have so many crosses out there that we will have to move the graves. I don't have more time and neither do many other people."

Benefield noted that both of Montana's senators were fighting for the Libby victims.

"This is not a partisan issue, " she said. "We've got everyone coming together on the same page."

But before the Senate gets a second crack at overcoming the budget issue, Baucus and Burns need the support of 58 senators.

Judiciary committee chair Sen. Arlen Specter is concerned that some of the senators who voted for the bill may change their minds before a second vote. He said some of the 58 senators voting for the measure last week might change their minds later unless the measure is substantially changed.

W.R. Grace supports the legislation along with about 70 other companies pushed into bankruptcy by thousands of asbestos injury claims. Some companies have raised concerns that their share of the trust fund could cost more than the pay-out in individual lawsuits.

The Senate majority leader wants 60 senators to "signify their commitment," perhaps in a letter listing the support, before he brings it up for a second vote to overcome the budget hurdle, reports the news agency Reuters.