Montana senators continue to work to revive FAIR

Efforts are ongoing in Washington, D.C., report staff members of Montana's U.S. Senators Max Baucus and Conrad Burns, to gather the 60 signatures needed to revive the Fairness in Asbestos Injury Resolution Act of 2005.

"Getting the 60 signatures is ongoing," said Barrett Kaiser, Baucus aide. "Max and (Sen. Arlen) Specter (R-Pa.) are continuing to push it. It's still very much on Max's radar."

Kaiser said it was unclear when the proposal will come up again for a vote.

The bill failed a procedural test by one vote in mid-February. Sen. John Ensign, R-Nev., questioned whether the bill was within the federal budget law. Fiscal conservatives and tort-reform advocates oppose the bill on the grounds that the proposed $140 billion trust fund could become insolvent, potentially leaving taxpayers to foot the bill for unpaid claims. Ensign's point of order was based on the same concern.

The bill was stalled by a 58-41 vote when Majority Leader Sen. Bill Frist, R-Tenn., changed his vote and voted against it so it could be brought up for future consideration. Sen. Daniel Inouye was called away for a family emergency shortly before the vote was taken.

Frist instructed supporters of FAIR that 60 members must signify their commitment in writing to support both the motion to waive the pending budget act point of order and end any filibuster of the bill.

Burns is continuing to help gather signatures, said Matt Mackowiak, Burns aide. But Mackowiak said it doesn't appear the bill will be revived before Congress takes its spring break, which begins March 20.

And the opposition is lobbying for support against the bill, Mackowiak said.

Baucus and Burns, working together, have been pushing for an amendment to the bill calling for the diffusion capacity test, DLCO, which is needed to ensure that all Libby asbestos victims receive compensation under the proposed federal legislation. Without it, about 40 percent of the Libby victims wouldn't qualify for compensation under the bill.

Earlier in the history of the legislation, Baucus worked with Specter to develop the so-called "Libby fix" to ensure adequate compensation for people exposed to the deadly amphibole asbestos that contaminated the vermiculite formerly mined and processed in the Libby area by W.R. Grace.

Under the Libby fix:

* 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; the bill establishes special medical criteria applicable only to Libby claimants.

* Libby claimants can choose to have their claims referred to an expert physicians' panel, which will utilize the special medical criteria developed for Libby claimants to ensure that they are treated 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. Those payments would be paid out $160,000 for the first year, $120,000 the second year and $120,000 the third year.

There are numerous amendments being proposed by other senators establishing stricter medical criteria in the legislation, which Libby victims couldn't meet because of the differences in asbestos-related disease. Some of the amendments would return the bill to its original form with basic medical criteria for asbestosis, which would eliminate most if not all of Libby asbestos victims from W.R. Grace's mining and milling operations.

Thus far, 1,200 Libby area residents have been identified with ARD as a result of exposure to tremolite asbestos that was a contaminate in the vermiculite mined and milled by Grace near Libby. At least 200 deaths due to ARD have been confirmed in a review of death records.

Just over a dozen individuals successfully sued Grace in local district court with another 200 cases backed up. In April 2001, Grace filed for bankruptcy claiming 325,000 asbestos personal injury claims had been field against them. As of April 2001, the company said it had paid out $1.9 billion in litigation related to asbestos issues. At that time, just over 100 Libby cases had been filed against Grace.

The initial FAIR legislation introduced in the late 1990's was a bail-out for corporations and a way to relieve U.S. court systems back-logged by asbestos-related litigation. To absolve the companies of their liabilities, a trust fund for victims was proposed with the asbestos companies and their insurance companies contributing to the fund.

The insurance companies have now come out against the proposed asbestos bill because of the lack of specifics in the trust fund and the potential problem that if the fund fails, asbestos companies could end up in court anyway.

Other senators opposed to the legislation have expressed concerns that constituents in their states exposed to Libby vermiculite would neither be covered by the FAIR medical criteria nor the Libby fix. Grace had shipped the vermiculite ore to more than 300 different locations for processing into insulating products. Recently, federal agencies have identified 26 other locations in the country of significant contamination by Libby vermiculite.

Earlier this week, in an interview in eastern Montana, Baucus said he believed too many of his Senate colleagues cannot grasp the severity of asbestos disease in Libby. He said it doesn't help that Libby is "off the beaten path."

A RAND Corp. study released in May 2005 found that more than 730,000 people in the United States filed compensation claims for asbestos-related injuries through the end of 2002, costing businesses and insurance companies more than $70 billion. According to the Cato Institute, the first asbestos claims were filed in 1966 and lawsuits against asbestos manufacturers and suppliers shot up in the early 1970s, even as use of the product was phased out.

The RAND report said claimants have received about 42 cents of every dollar spent on asbestos litigation, according to the study, while 31 cents has gone to defense costs and 27 cents to plaintiffs' attorneys. At least 8,400 entities were named as defendants in asbestos claims through 2002. At least 73 companies named in a substantial number of asbestos claims filed for bankruptcy through mid-2004.

Both Baucus and Burns had said they will work for passage for the FAIR bill as long as Libby victims are covered.