Roger Worthington, P.C.

Our mission is simple: we want our day in court for plaintiffs dying from mesothelioma. Federal multi-district litigation docket 875 has obstructed that end and requires reform. If the judicial panel that oversees MDL 875 refuses to fix the problem after appeals through the proper channels, then we welcome the intervention of the US Senate to hold hearings and pass legislation that will remedy this injustice.

Our firm reported in March 2007 that navy veterans suffering from painful, aggressive, and terminal mesothelioma have had their day in court buried forever in the federal court responsible for asbestos litigation. The infamous “black hole” multi-district litigation docket to which these cases are removed continues to obstruct the rights of mesothelioma plaintiffs to a speedy jury trial.

A star chamber for the 21^st Century

MDL 875 is a holding tank that was created to resolve pre-trial issues and questions of fact that are common to asbestos cases, settle the cases if possible, then return the cases back to the originating federal court for trial once the pretrial issues were resolved or when settlements could not be reached.

The hope was that the One Big Federal Court Program would prevent each district court in each major city from having to go through the lengthy, repetitive process of answering the same pretrial questions over and over and would provide a centralized court that could set up rules for settling cases. It would allow defendants and plaintiffs to quickly get down to the business resolving their case.

The judge presiding over the MDL was imbued with extraordinary powers to influence settlements, resolve pretrial issues, and remand the case for trial.

The current presiding federal district judge, Judge James Giles of the Eastern District of Pennsylvania, took over the multi-district asbestos docket after the death of Judge Charles Weiner in 2005. Judge Weiner resolved thousands of cases, yet thousands more remain holed up in the MDL. An estimated 3,000 of those cases are by malignant mesothelioma plaintiffs, in extremis claimants whose life expectancy is measured in weeks or months.

The key complaint from numerous plaintiffs is that Judge Weiner didn’t settle common questions and he didn’t coordinate. He acted as a forced arbitrator, letting plaintiffs know that they could either settle or see their cases stuck in MDL forever. This gave defendants tremendous leverage, especially with meso cases, because the single biggest tool for justice—a trial in front of a jury—was effectively taken away from plaintiffs. Defendants responded with miniscule settlement offers, or none at all.

The new MDL judge, Judge Giles, has signified that he will continue what Judge Weiner began. His only forward movement on asbestos litigation has been his attempt to dismiss thousands of asbestosis lawsuits that defendants claim were diagnosed by fraudulent doctors. While stalwarts in the pro-asbestos world such as the U.S. Chamber of Commerce have lauded this move, the life-and-death issue of cases filed by mesothelioma victims remains untouched.

How a meso case gets stuck in the black hole

The MDL order does not contemplate that the MDL judge will hold onto cases forever, without remanding them to federal district court for trial. Instead, it creates a framework where a plaintiff files suit, the case is removed to the MDL docket to resolve and coordinate common pretrial questions of law, and then “remanded” back to district court so the trial can proceed if a settlement cannot be reached.

MDL 875 proceedings include the development of cases for settlement, trial or other disposition. They also include supervision of extensive discovery concerning the ongoing flow of asbestos-related personal injury actions in the courts. MDL activities also include prioritizing cases for resolution.

Although theoretically MDL 875 can remand cases for trial, in reality the court has enforced a practice in which it will not remand a case until “all avenues for settlement have been exhausted.” This can take years, and when the meso claimant dies, significant parts of his compensation claim expire as well. Moreover, the MDL has a policy of severing punitive damages from compensatory damages, which means that even when cases are remanded, the most financially meaningful part of the claim remains in perpetual MDL orbit. Even under the best circumstances, the defendants get a windfall by never having to face punitive damages, which translates as artificially lowered settlement offers.

By 2000, out of 66,000 cases only 1,000 ever qualified for remand. The MDL’s discretion on when pretrial issues had been resolved was so great that meso cases rarely got back to federal court for trial. Also by 2000, Judge Weiner had closed 44,723 cases in MDL 875, orchestrated settlements for unfiled claims, and facilitated settlements in state court jurisdictions at the request of state court judges. He is estimated to have resolved or dismissed over four million claims comprised in those 44,273 cases.

This breakneck pace of efficiency with regard to nonmalignant claims sounds great, but for terminal mesothelioma plaintiffs whose cases are never completely resolved or who are forced to accept pennies on the dollar because defendants know they’ll never face a jury, the injustice has been even greater.

Plaintiff’s lawyers like federal court and their juries and would gladly try cases there. There are many features of federal law that facilitate the just disposition of personal injury claims, such as the 6-hour limitation on depositions. Meso lawyers shudder at federal courts because of the MDL graveyard, not because of the procedural law, jury pool, or bench.

Judicial solution

Since a mesothelioma claimant’s life span averages 6-18 months from the time of diagnosis, there must be a mechanism to get their claims resolved if they are to have any meaningful chance of receiving fair compensation for having been poisoned. Justice delayed until after you’ve died is justice denied. What’s crucial is some change in the MDL process to accommodate in extremis, dying meso victims, who are a small percentage of the total docket.

Since the multidistrict litigation court is itself supervised by a panel of federal judges, it made sense early on to seek their intervention to unclog the backlog. The panel, however, refused to intervene, choosing instead to stamp its approval on this miscarriage of justice.

Following the panel’s ruling, Judge Weiner’s policy of holding meso cases hostage in the black hole was challenged in the 3^rd Circuit Court of Appeals. In April 2000 the appeals court upheld Judge Weiner’s approach and agreed with the asbestos companies when it noted approvingly that the court had resolved a prodigious number of claims—44,000 in the first six years alone. But there’s a world of difference between disposing of claims and sending them back to district court where they can be tried. For meso victims, there’s the added factor of time. Even a month’s delay can mean the difference between life and death.

And for all the claims of judicial efficiency, the court still has a backlog of over 100,000 cases, and mesothelioma victims continue to die before their cases are ever heard.

The 3^rd Circuit, the supervising judicial panel, and the MDL court itself have all made it clear that they will never release their grip on these cases. Dying meso patients whose claims are languishing in the federal black hole continue to be denied the right to have their case brought before a jury.

Legislative solution

The idea that legislators can put gentle pressure on the court to un-hitch the most pressing mesothelioma cases from the black hole is unlikely to succeed. Constitutionally, the court is insulated from congressional interference and free to interpret the laws as it sees fit. Practically, with an estimated 3,000 meso cases locked up in the black hole, and each case potentially worth several million dollars, a sudden release of these claims would put huge financial pressure on the defendants who have successfully bottled them up for so many years. It is inconceivable that these companies would give in without a fight.

In our democracy, that leaves one option: legislation. The section of the U.S. Code that authorizes and regulates multi-district litigation already has exemptions carved out for antitrust. Adding language that guarantees in extremis plaintiffs, such as mesothelioma, lung cancer and advanced asbestosis victims, the right to have their cases quickly addressed is feasible, fair, and in line with pronouncements of the MDL court itself. Justice delayed for a mesothelioma victim is no justice at all.

We encourage the U.S. Senate to hold hearings on this crucial issue so that victims don’t have to wait for the afterlife in order to get what they deserve. We encourage victims and their families to write, and call their U.S. Senator to urge that hearings be held on the asbestos MDL. Asbestos defendants have all the time in the world. Asbestos victims do not.

This important news involving WR Grace and asbestos illustrates why the definition, diagnosis, and treatment of asbestosis and asbestos cancers should be on a clinical basis rather than a geological basis. W.R. Grace is trying to escape its liability for poisoning an entire city by claiming that what is asbestos now was not legally asbestos then.

This type of semantic gamesmanship clearly shows why asbestosis and asbestos cancers are what should define asbestos fibers, not a Congressional definition or legislative fiat. When certain materials cause death under defined clinical conditions, they are asbestos. The industry’s disingenuous claim, that even though the substance kills it belongs (or should belong, or might belong, or once belonged) to a different mineralogical nomenclature and is therefore beyond the reach of regulation, is horrific.

Anything less than a complete ban on asbestos continues to hold open the door for death motivated by greed. The asbestos industry plays to win. So must we.

The following announcement was released by the Pacific Heart, Lung & Blood Institute today regarding the pending asbestos ban legislation in the U.S. House of Representatives:

The Pacific Heart, Lung & Blood Institute unanimously supports a complete ban on asbestos-containing products and adequate funding for research on asbestos-related diseases. The House Committee on Energy and Commerce’s draft bill, currently referred to as the “committee print,” is the best vehicle to address a true ban and provide meaningful funding.

Public health concerns should prevail

We support the committee print’s ban on all asbestos containing products. We explicitly reject the “less than one-percent” exemption, which would allow the continued use of asbestos as long as this toxic mineral is less than one percent by product weight. Such an exemption would allow industry to include one pound of lethal asbestos in a 100-pound bag of insulation. This one-percent exemption would perpetuate the misery of the asbestos disease epidemic and is indefensible on public health policy grounds.

We support the committee print’s broad, effective asbestos ban as the first federal legislation that recognizes what scientists have known for decades: there is no safe level of exposure to asbestos. The committee print’s broad ban also reinforces the fact that there is no scientific or public health basis for allowing the one-percent exemption. The committee print also authorizes government-funded compliance testing of products in American markets, which will safeguard against machinations by industry to dodge the ban.

The Pacific Heart, Lung & Blood Institute supports the existing committee print as the most effective, science-based standard for effectively banning asbestos. Asbestos is responsible for the worst occupational health epidemic in our country’s history. We have seen no compelling health-based reason to support an exemption that would, in our view, only perpetuate the asbestos health epidemic. Sadly, the exemption is a stark reminder of the asbestos industry’s dark history of fabricating scientific research, stifling work safety regulation, and putting profits over people.

Research funding for treatment and a cure

The Pacific Heart, Lung & Blood Institute supports asbestos ban legislation that includes funding for asbestos disease research. A ban must be accompanied by significant resources for public awareness, for better treatment and for finding a cure.

We support unified efforts to draft meaningful research legislation that will be merged with the committee print’s current ban provisions. The committee print, with its ban provisions and its still undrafted research provision, offers an unparalleled chance for advocates and scientists to obtain, for the first time ever, enormous financial resources to better treat and ultimately cure asbestos diseases. The House subcommittee responsible for drafting these research provisions is already at work. The time is ripe for advocates to unite and work with the House to consolidate and strengthen these crucial research provisions.

The Pacific Heart, Lung & Blood Institute supports provisions that:

1.    Establish a competitive peer review grant program with targeted research priorities such as biological therapies, multi-modal therapies, prevention, biomarkers, and pain management;
2.    Fund centers of research and treatment excellence from coast to coast;
3.    Fund a database, registry and tissue bank;
4.    Create an asbestos surveillance and public awareness program;
5.    Appropriate $100 million over the first five years, divided between the National Institute of Health, the Center for Disease Control, and the Veterans Administration. We note that about 1/3 of all victims of mesothelioma in the U.S. were exposed while serving in the navy or naval shipyards.

The Pacific Heart, Lung & Blood Institute believes that the opportunity for a united front is extraordinary. By working together with victims and their families, groups such as the Asbestos Disease Awareness Organization, the Mesothelioma Applied Research Foundation, doctors, advocates, cancer research institutes, and national centers for excellence, we can—here and now—draft legislation to fully fund mesothelioma research while also supporting an effective ban as spelled out in the existing committee print.

Now versus later

The Pacific Heart, Lung & Blood Institute supports the committee print’s statutory approach to an asbestos ban, and rejects the rulemaking approach used in previous attempts to ban asbestos. Statutory bans have a proven track record with toxic materials such as PCBs and DDT.

We urge all stakeholders to join with us in helping influence research funding provisions, which have yet to be crafted in the House’s draft bill. Working together to write an improved bill in the House will provide a superior version to the Senate bill, which will face robust opposition in conference committee due to its unconscionable one-percent exemption. After a century of death and disease, the time for delay is past. Our board supports an immediate, unambiguous ban with research funding commensurate with the scope of the asbestos health epidemic today.

About

The Pacific Heart, Lung & Blood Institute is a non-profit 501(c)3 corporation composed of physicians, patients, and advocates dedicated to the eradication of diseases of the heart, lungs, and blood. PHLBI conducts innovative research to benefit future generations.

Phone: (310) 478-4678 | Fax: (310) 988-2693
1615 Westwood Blvd., Suite 204
Los Angeles, CA 90024
Email: info@phlbi.org
www.phlbi.org

Advocate, mesothelioma survivor, and businessman Paul Zygielbaum’s fax to the House Subcommittee on Environment and Hazardous Materials. Click here to read the Zygielbaum Letter to Congress.

In an effort to reduce exposure to asbestos, House Energy & Commerce Committee Democrats are poised to unveil a draft bill aimed at forcing EPA to ban asbestos-containing products which is substantially stricter than a controversial bill the Senate approved last year, according to a copy of the draft legislation obtained by Inside EPA.

The draft House bill generally requires EPA to ban any product containing asbestos, a change from the Senate bill which generally allows products to contain as much as one percent asbestos. The draft House bill also includes narrower exceptions for the chlorine and crushed stone industries than the Senate bill and also sets stricter criminal enforcement penalties than the Senate bill.

The draft House measure is a victory for public health activists who have been lobbying lawmakers to craft a measure stricter than the Senate-backed version. However, the measure is likely to be met with opposition from industry officials, who are urging House lawmakers to forgo any ban stricter than the one outlined in the Senate-approved bill until further research is conducted.

Both the Senate bill and the draft House bill are scheduled for review before the committee’s Environment & Hazardous Materials Subcommittee during a Feb. 28 hearing.

Following negotiations with GOP lawmakers and industry officials, Senate Democrats last year scaled back S. 742, a bill originally introduced by Sen. Patty Murray (D-WA). The bill the Senate approved Oct. 4 only bans asbestos-containing materials, which the Toxics Substances Control Act (TSCA) defines as “any material which contains more than 1 percent asbestos by weight,” a concentration many activists argue is still capable of producing dangerous exposure levels.

Senate Democrats changed the Senate bill, following negotiations with Senate Republicans and crushed stone industry representatives who argued that naturally occurring background levels of asbestos in some substances would have made a stricter prohibition in the original bill unworkable. They also created an exemption for the chlorine manufacturing industry, which had raised concerns some of its facilities could be inadvertently shut down by the ban.

Like the original Senate bill, the draft House bill bans the importation, manufacture, processing and distribution of all asbestos-containing products, defined as “any product (including any part) to which asbestos is deliberately added, or used, or in which asbestos is otherwise present in any concentration.”

“We tried to draft a more health protective [bill] — the 1 percent thing [included in the Senate bill] has been discredited by the public health community and EPA,” a House Democratic source says, adding that EPA officials provided House legislative staff with technical assistance while drafting the legislation.

The draft House bill creates only a narrow, conditional exemption for the crushed stone industry, allowing it to only continue use of “aggregate products (extracted from stone, sand, or gravel operations)” that have an asbestos content less than 0.25 percent — the same threshold established by a strict California regulation governing the use of asbestos in road construction.

Like the Senate bill, the draft House bill also includes an exemption for the chlorine manufacturing industry. However, the exemption is far narrower in the House draft, allowing the industry only to continue using products in its manufacturing process that contain asbestos concentrations less than 0.01 percent.

The bill the Senate approved does not specify a concentration level in its exemption for the chlorine industry. The House Democratic source says House lawmakers may adjust the threshold further after chlorine industry officials provide them with more detailed information as to what concentration of asbestos their facilities use.

In addition, the draft House bill includes criminal enforcement provisions stricter than those in the Senate bill, which activists had sought. While the Senate bill adopted TSCA provisions making those who violate the ban subject to a $25,000 fine for each day of violation and up to one year of imprisonment, the House legislation authorizes up to five years of jail time.

The draft bill also includes explicit language specifying the bill should have no bearing on civil suits filed by alleged asbestos exposure victims, a difference with the Senate bill which referenced similar language in TSCA. The draft House bill states that “[i]t is not the intent of Congress” that the legislation “be interpreted as influencing, in either the plaintiff’s or defendant’s favor, the disposition of any civil action for damages relating to asbestos.”

However, while draft House language asserts it is not lawmakers’ intent to influence such claims, it also includes language specifying that it should not prevent any court from admitting the legislation as evidence, meaning plaintiffs could still seek to do so.

However, the House Democratic source says it is unclear whether this will address concerns raised by Senate Republicans who feared that an earlier version of the Senate bill, which included findings that there is no safe level of asbestos exposure, could bolster tort claims.

Another potential controversy the House bill faces is over its provisions creating a narrow exception from the ban for the crushed stone industry, which is subject to a 0.25 percent threshold. Under the bill, EPA would have one year to issue guidance establishing the test method for checking compliance with the 0.25 percent threshold and three years to promulgate final regulations establishing the test method.

The California regulation upon which the 0.25 percent threshold for crushed stone is based is problematic, an industry source argues, saying that the laboratory test method the state has adopted to enforce the threshold produces inconsistent results. The California Air Resources Board, which enforces the regulation — known as the asbestos Airborne Toxic Control Measure for surfacing applications — is currently considering revisions to the test method in order to address those concerns, the industry source notes.

In addition, industry groups are urging House lawmakers to specify in the legislation a test methodology for differentiating between asbestos fibers and nonasbestiform cleavage fragments produced by certain types of rock used in construction materials, the industry source says.

Under California law, the state would enforce whichever standard is more strict when EPA promulgates its regulation and would also evaluate the agency’s test method to determine if it is equivalent to its own, a state source says.

Every three years thereafter, the draft House legislation requires EPA to review whether the standard is protective of human health and lower the threshold if it determines it is not.

House Democrats want to avoid having the standard “frozen in statute,” the House Democratic source says. In addition, under the House bill the ban would automatically take affect within two years of passage, which bypasses an EPA rulemaking the Senate bill called for that agency officials told House legislative staff would take several years and “cost millions of dollars,” the House Democratic source says.

The draft House bill also includes a savings clause that addresses concerns the Senate bill might have preempted an existing EPA regulation banning new uses of asbestos, the House Democratic source says. The House bill also states that it is not meant to “preempt, displace, or supplant any other State or Federal law.”

House lawmakers will discuss both the draft legislation and the Senate bill during the Feb. 28 hearing, the House Democratic source says. Industry officials have asked that Roger McClellan, a former chairman of EPA’s Clean Air Scientific Advisory Committee, to testify at the hearing, the industry source says.

In addition, the subcommittee has invited Richard Lemen, a former deputy director of the National Institute for Occupational Safety & Health, and Dr. Aubrey Miller, a senior EPA medical officer, to testify, an informed source says. The subcommittee has also invited Ann Wylie, of the University of Maryland, and Peg Seminario, director of safety and health for the AFL-CIO, to testify, the informed source says. — Douglas P. Guarino

Monday, February 25, 2008
From InsideEPA.com

Environmental Affairs and Tourism Minister Marthinus van Schalkwyk has announced that the use, manufacture and processing of asbestos will be prohibited in South Africa with immediate effect. Read the entire story here.

As the rest of the world closes ranks against one of the worst public health catastrophes in history with nations like South Africa leading the way, Canada and the U.S.A. have so far failed to get in line with medical and scientific research that shows asbestos is a lethal killer. Mesothelioma and asbestosis are just two of the diseases caused by asbestos. With no cure for either illness, asbestos has no place in modern society.

By ANDREW SCHNEIDER
Post-Intelligencer SENIOR CORRESPONDENT

Just a month after the Senate with great fanfare passed the first legislation to ban disease-causing asbestos, public health officials, government regulators and advocates for asbestos victims are increasingly speaking out in opposition to the bill they once supported.

The bill originally imposed a total ban on asbestos, and that’s the version that the public health experts testified in support of.

But between the hearing in June and the Senate vote last month, ban supporters say the legislation was watered down to appease powerful lobbyists and industry. Many asbestos-containing products now aren’t covered by the ban at all.

Nonetheless, says Sen. Patty Murray, D-Wash., the ban is “a major step forward, and I passionately wish it covered all asbestos products. If I was just Patty Murray and I didn’t have to worry about getting other votes or a Republican president or that I have a one-vote majority in the United States Senate, I’d have a 100 percent ban,” Murray said last week.

Staffers for Murray and Sen. Barbara Boxer of California, who co-sponsored the legislation, insist that the Environmental Protection Agency “fully supports the bill as passed” and the agency’s personnel were closely involved throughout the process.

Not so, say agency scientists and the EPA’s legislative office. While the EPA said it had “no public position on the legislation,” documents obtained by the Seattle P-I show the agency has “significant concern” that the ban doesn’t go far enough.

In a draft of a letter prepared for the House Committee on Energy and Commerce, which will hold the hearings on the Senate-passed bill, the EPA quickly went to the issue that is concerning much of the public health community: “To protect public health and the environment from asbestos hazards, the ban should target any products in which asbestos is intentionally added or knowingly present as a contaminant,” read the evaluation, which was to be signed by EPA Administrator Stephen Johnson.

But last month, the White House Office of Management and Budget rejected the entire document and told the EPA it could not submit it. Government scientists charged that the OMB action was another example of the White House putting politics over science.

But the EPA did not buckle.

In comments prepared this week for Congress, the EPA scientists repeated that the ban should apply to “any product to which asbestos is deliberately added or used, or in which asbestos is otherwise present in any concentration.”

This definition is precisely what businesses, road builders, the owners of mines and pits where asbestos-contaminated sand, stone and ore is still dug, managed to get deleted.

The lobbyists also wanted to control how the research the legislation demanded would be done.

The bill says that a study would be done to collect scientific evidence to determine the cancer-causing hazard to health from products not covered by the ban.

“I’ve got to tell you, (industry lobbyists) tried to back me off the study more times then you can know,” Murray said.

“The Stone, Sand and Gravel Association demanded their own scientists do the study, be at the table. No way,” Murray said. “If you put that in here, I’m walking away from it.”

What the bill won’t do

Here are some of the effects of the last-minute changes in the Senate bill:

# An epidemiologist with the Connecticut health department told the Consumer Product Safety Commission earlier this year that asbestos was found in modeling clay that children were using in art classes. The art clay, the health official wrote, contained asbestos-contaminated talc from the R.T. Vanderbilt talc mines in upstate New York. Though federal health investigators documented the presence of asbestos in that mine decades earlier and scores of workers have been sickened or killed from exposure to asbestos in the talc, the Senate ban would not prevent the tainted powder from being sold.

# Along the Iron Range in northern Michigan and Minnesota, waste from the taconite iron mines is contaminated with asbestos. Miners with asbestosis and the fast-killing mesothelioma are never far from tanks of oxygen. Elaborate marketing plans obtained by the P-I show how the taconite industry plans to sell the mining waste across the Midwest for construction of roads, airports, bridges and other public products and to claim that the product is free of asbestos. The current legislation will do nothing to prevent that.

# Millions of homes and businesses have insulation in their walls and attics made from asbestos-contaminated vermiculite ore. Hundreds of miners and their family members have died and thousands more are ill from this Libby, Mont., vermiculite ore. Nothing in the law would keep the mine from being reopened and the tainted ore again sold in scores of products. Nor will the Senate effort restrict or even demand monitoring of other mines that are today producing vermiculite.

Murray says the education provision of the bill will tell people of these risks, but some of the witnesses who testified for the ban say that isn’t enough.

“The government knows that asbestos products not covered by the legislation can cause harm and would allow, and probably encourage, companies to continue selling contaminated products because they are exempt from the ban,” said Dr. Aubrey Miller, senior medical officer and toxicologist for the EPA.

Dr. Michael Harbut, who has diagnosed and treated thousands of asbestos victims, also testified for the bill and is now worried about the language.

“We need to be truthful with the public. This should be called the limited asbestos ban act,” said Harbut, who is co-director of the National Center for Vermiculite and Asbestos-Related Cancers at the Karmanos Cancer Institute.

Linda Reinstein, a mesothelioma widow and executive director of the Asbestos Disease Awareness Organization, said: “After all the years of effort by the physicians, scientists, victims and Senators Murray and Boxer, we cannot wind up with a ban that doesn’t include all asbestos. … We all knew that compromises had to be made to get this legislation passed but I didn’t anticipate that industry would successfully intervene at the last minute.”

Sausage making

The axiom that crafting legislation is like making sausage does little to convey the meticulous, high-pressure choreography between what lawmakers want their legislation to do and what industry lobbyists will permit. Murray and Boxer had to live with that reality.

For six years, Murray fought to get her colleagues in the Senate to ban asbestos. It made sense. People were dying by the thousands and the deaths of a new generation might be prevented. But industry and the Bush White House didn’t want the U.S. to follow 40 other countries and ban the importation, use and sale of the cancer-causing fibers. Lobbyists for America’s largest industries swarmed over Capitol Hill, called in IOUs and dumped millions of dollars to fight the ban.

But on Oct. 4, every U.S. senator voted to ban asbestos. That day, widows and friends toasted loved ones killed by asbestos.

Scientists and physicians who had helped educate the senator and her staff members called one another, many not believing that the ban finally was just House passage away from becoming law. But when the euphoria of winning waned and people actually read the bill, many of them realized that the legislation no longer contained the same protection they had testified about, and they started speaking out.

Bill Kamela, who is Murray’s senior staff person in the fight for the ban, left a voice mail message last week on the home phone of the EPA’s Miller.

Kamela questioned the accuracy of Miller’s views and ended the message with: “This disinformation campaign is not helpful to anybody and certainly not folks who want to stick around this administration and try to do the right thing at the end of the day.”

Murray blamed her aide’s action on “the frustration of having the bill mischaracterized … “

As the staff continues to defend the quality of the bill, they say the “real threat” will come from Rep. John Dingell, who heads the House committee that will hold hearings on the bill early next month. They say the Michigan Democrat will bow to the auto industry to exclude asbestos-containing brake material from the ban. Dingell did meet with auto industry representatives last month, “but will do nothing to damage the bill,” a member of the committee staff said.

Almost all of the witnesses who had worked earlier to get the bill passed or to testify on its need were contacted repeatedly last week by Kamela, Bettina Poirier, staff director and chief counsel for Boxer’s committee on Environment and Public Works and other staff members.

“These people, especially Poirier, kept calling. She ordered me not to talk to anyone about my views on the bill. She told me that I was spreading disinformation, that the bill was not flawed,” Miller said.

Richard Lemen, a retired U.S. assistant surgeon general and former acting director of the National Institute for Occupational Safety and Health, has long fought for the ban and what Murray was trying to do.

Lemen and several of Murray’s other witnesses joined in a two-hour conference call with the Senate staff one evening last week. Three of the participants said Poirier screamed at Lemen for much of that time, trying to get him to change his mind.

“It was not pleasant,” Lemen said. “They were trying to get me to change my opinion, which I’m not going to do. This is a bad bill.”

Poirier said she wasn’t screaming at him.

“Maybe that’s how they interpreted it. I have a cold so my voice doesn’t sound exactly normal,” the senior aide explained.

“We were trying to help him … because they misunderstood what happened and we were trying to clear the air and support them.”

Lemen saw it differently.

“These staff people are the same ones who asked us to testify and now they’re the same people who are trying to shut us up. I’m not going to be quiet,” he said.

“The public will be given a false sense of hope and that, to me, is an outrage, As a result there are going to be thousands of people at risk of developing asbestos-related diseases. No one knows how many will die.”
P-I senior correspondent Andrew Schneider can be reached at 206-448-8218 or andrewschneider@seattlepi.com.
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CBC News
Tuesday, Oct. 9, 2007

Four decades since Canadians first became aware of the danger posed by asbestos, some experts are calling on Canada to stop mining and exporting the material.

Jim Brophy, director of the Occupational Health Clinic for Ontario Workers (OHCOW), said the clinic receives calls almost every day from workers about some type of asbestos-related health problem.

Vermiculite, long used for insulation in Canadian homes, was just one of the many common products developed from asbestoes. Vermiculite, long used for insulation in Canadian homes, was just one of the many common products developed from asbestoes.

Brophy, an internationally recognized expert on the risks of asbestos, added that the frequency of calls to the clinic is higher this year than in each of the last three years. He said the number of worker deaths from asbestos exposure is expected to peak in the next decade.

Asbestos is a fibrous mineral that’s used for many industrial purposes around the world, and can be found in ceilings, walls and pipes. There are several types, but the most common asbestos is chrysotile.

It becomes a health hazard when the asbestos fibres are inhaled and become lodged in the body, increasing the chance of developing diseases, such as mesothelioma, a deadly cancer of the lungs.

The OHCOW fears mesothelioma, which can take decades to develop, will soar in coming years. Yet in Canada, there is no one keeping track, Brophy said.
Continue Article

“We’re probably alone among the industrialized countries in not documenting the extent of the disease and its impact on our society,” he said. “This is the leading cause of occupational disease and occupational mortality in Canada today. Completely under the public health radar in this country.”

Brophy said almost all international health agencies — including the UN’s International Agency for the Research of Cancer, the World Health Organization, the International Labour Organization and the Canadian Cancer Society — have called for asbestos to be banned.
Canada leading exporter

Canada, which first began mining asbestos in 1879, continues to mine the mineral in Quebec and exports it to many developing countries where it’s used mainly to strengthen cement. Canada, which is one of the world’s leading producers of asbestos, is among the few developed countries that hasn’t banned the material.

The government’s defence of chrysotile has two planks: that recent science proves this type of asbestos is much safer than others; and that properly handled, Canadian asbestos is safe to use.

Ottawa and Quebec City spend millions on trade promotion through the Montreal-based Chrysotile Institute, run by the non-profit organization’s president, Clément Godbout.

While Godbout said asbestos used properly is not deadly, he avoided calling it safe.

“There is some propaganda around this subject,” said Godbout. “There is also commercial interest around this subject. There are lots more dangerous products and substances than chrysotile. For example, in some countries, they are building arms to kill people.”
Defence a delusion: expert

Barry Castleman, a leading American occupational health scientist who advises many of the global bodies which now ban all use of any asbestos, calls Canada’s concept of “safe use” a delusion.

“Because it’s been given up on in so many countries as hopelessly dangerous and unnecessarily so, Canada’s view is very much a minority view,” he said. “It really would be crucial if Canada, instead of pressing for its right to export more asbestos to the local chapters of the asbestos mafia in the Third World, would join the rest of the civilized countries of this world in shutting down the asbestos industry and saying enough’s enough.”

Retired electrician Bob Blakey, who worked around asbestos for 40 years in Sarnia, Ont., and watched five of his co-workers die from mesothelioma, wants to see the government ban asbestos use and production.

“Every other country is trying to ban it,” he said. “European countries have got bans on it and Canada is out there pushing this product like a dope dealer. … I think it’s criminal.

WASHINGTON (October 4, 2007) – U.S. Senator Johnny Isakson, R-Ga., today praised Senate passage of legislation he authored with Senator Patty Murray, D-Wash., to ban for the first time ever the production, manufacture and distribution of asbestos, a deadly carcinogen that is still legally used in the United States.

“It was a pleasure to work with Senator Murray on crafting this legislation. This bill is the culmination of months of bipartisan work to find common ground on this important issue, and I extremely pleased the Senate acted so quickly to approve it,” Isakson said. “Banning asbestos is simply the right thing to do. This legislation provides the framework for how we must go about achieving that goal, and I plan to work with my colleagues in the House to make sure this bill reaches the President’s desk.”

The bill establishes a permanent ban of asbestos that will be enforced by the Environmental Protection Agency. The bill also mandates the most thorough government study of asbestos to date. The study will ensure the best experts from the National Institute of Occupational Safety and Health, the National Academy of Sciences and the EPA examine all aspects of asbestos, including its natural properties, its geographic distribution across the United States and its effects on the human body.

Asbestos is known to cause diseases, including mesothelioma, a cancer that occurs when malignant cells develop in the protective lining around the lungs. Despite this hazard, the substance is not banned. The EPA initially proposed a ban of most asbestos-containing materials in the late 1970’s, but the rule was not finalized until 1989. In 1991, the 5th U.S. Circuit Court of Appeals struck down the rule, finding that EPA had “failed to muster substantial evidence” in support of the ban. Today, the United States uses about 2,000 tons of asbestos annually, down from almost 800,000 tons used in the mid-1970’s.

In addition to an outright ban on asbestos, the bill also calls for a national mesothelioma registry, a public information campaign about the hazards of asbestos-containing materials, some narrow exemptions for the few areas in which asbestos can be used safely and an annual testing program for asbestos-containing material in products.

The Asbestos Disease Awareness Organization (ADAO), an organization dedicated to serving as the voice of asbestos victims, praised the passage of Senator Patty Murray (D-WA)’s Ban Asbestos in America Act of 2007 by the U.S. Senate. The Ban Asbestos in America Act is an effort to ban all production and use of asbestos in America, launch public education campaigns to raise awareness about its dangers and expand research and treatment of diseases caused by asbestos.

“Senator Patty Murray is a hero for all asbestos victims and their families, and a future protector of generations to come, helping to ensure a safer environment for us all,” said Linda Reinstein, Executive Director and Cofounder of Asbestos Disease Awareness Organization (ADAO). “We praise the Senate for passing Senator Murray’s monumental Ban Asbestos in America Act and now encourage the House to follow this important bi-partisan lead for a full ban on asbestos. We also extend a special thanks to Senate Majority Leader Harry Reid (D-NV), Assistant Majority Leader Dick Durbin (D-IL), Senator Barbara Boxer (D-CA) and Senator Johnny Isakson (R-GA) for their critical support. We look forward to the day when asbestos disease will no longer needlessly claim lives.”

The occurrence of asbestos-related diseases, including mesothelioma, lung cancer and asbestosis, is growing out of control. Studies estimate that during the next decade, 100,000 victims in the United States will die of an asbestos related disease - equaling 30 deaths per day.

About Asbestos Disease Awareness Organization

Asbestos Disease Awareness Organization (ADAO) was founded by asbestos victims and their families in 2004. ADAO seeks to give asbestos victims a united voice to help ensure that their rights are fairly represented and protected, and raise public awareness about the dangers of asbestos exposure and the often deadly asbestos related diseases. ADAO is funded through voluntary contributions and staffed by volunteers.

http://www.asbestosdiseaseawareness.org

For further information please go to: Asbestos Disease Awareness Organization