Ban asbestos legislation likely dead for this session

October 18, 2008

Despite concerted efforts by advocates for a ban on asbestos, the House’s companion bill to its Senate ban counterpart never made it out of subcommittee. Now that Congress has adjourned and the session is over, the only chance for the bill’s resurrection is a lame duck session by Congress, which neither looks likely nor, even if it happens, expected to get the ban bill back on track.

Advocates hope that when Congress reconvenes in 2009, hopefully with a crushing Democratic majority in the House and a bulletproof, veto-proof majority in the Senate led by a charismatic Democratic president, the legislation will be brought back from the dead.

After more than 19 years of waiting, it’s more than time–it’s a tragedy.


Update on U.S. ban asbestos legislative efforts

May 22, 2008

Excerpt from Laurie Kazan-Allen’s “Governments Debate Asbestos”

Although asbestos has not been banned in the United States, its use has dwindled considerably due to the threat of litigation. Nevertheless, campaigning groups have been actively lobbying for a number of years for a ban on all asbestos use in the U.S. In October 2007, the Ban Asbestos in America Act of 2007 was passed by the Senate.4 Unfortunately somewhere between the drafting of the Senate bill and its unanimous adoption, the language was changed to such an extent that the proposed legislation became unacceptable to the Asbestos Diseases Awareness Organization (ADAO), and others who support the cessation of all asbestos use in the U.S. American business executive, mesothelioma survivor and activist Paul Zygielbaum explains:

“Rather than banning all products containing asbestos, whether as an ingredient or as a contaminant, the revised Senate bill would ban only ‘asbestos containing materials,’ which have a legal definition that generally allows asbestos content up to 1% by weight. The revised bill also calls for studies of the state of scientific knowledge about the hazards of asbestos, a provision sought by industry sources. The bill omits provisions in the earlier draft that would have mandated government testing of products for asbestos content.”5

A determined effort began, directed at the House of Representatives (House), to reinstate the original wording. On May 18, there was a briefing of Democratic staffers on the Energy and Commerce Committee in Washington D.C. to consider the more stringent House Committee Print which seeks to “establish a ban on asbestos-containing products, initiate a public education effort to increase awareness of the dangers of exposure to asbestos and provide compliance testing.” Experts who gave evidence at this hearing included: Peg Seminario, Director of Safety and Health, ALF-CIO, Dr. Arthur Frank from Drexel University, Mrs. Linda Reinstein, Executive Director of the ADAO and others.

Should the House pass a stricter bill than the Senate, a legislative committee will be asked to produce a compromise bill for submission to the President. This opens up yet another can of worms such as the omissions which could be demanded by opponents of the ban as well as the possibility of a Presidential veto. Opinion is divided over the best course of action on the thorny 1% issue. Zygielbaum continues:

“The 1% limit defined in the Senate bill is viewed by some as a stop-gap, with the hope that a future Congress could muster the support needed for a complete ban.Others believe that, if the Senate bill becomes law, it’s unlikely to be revisited in the foreseeable future. Still others point out that the 1% limit would institutionalize asbestos content and contamination in products on American store shelves.one person put it, ‘A 1% limit could mean that it would be permissible to have asbestos in my cornflakes.'”

Speaking about the House hearing on May 18, Mrs. Reinstein said:

“The ADAO supports the House Committee Print that eliminates the 1% exemption and establishes a statutory ban on asbestos. We agree with the World Health Organization’s powerful statement that, ‘The most efficient way to eliminate asbestos-related diseases is to stop using all types of asbestos.’ Scientific technology has made gigantic strides in asbestos detection since the 1970s. We don’t have to compromise public safety by using antiquated analytical standards. Recent Congressional testimony reaffirmed that 1% is not a health based number and asbestos exposure is deadly. We only have one opportunity to ban asbestos – and it is now. Congress can and should pass this legislation to ban asbestos-containing products, initiate a public awareness program and provide for compliance testing which is fully justified, absolutely necessary, and long overdue.”

Whatever the eventual outcome of these activities, there can be little doubt that asbestos victims’ groups and campaigners are now participating at the highest levels of policy making on asbestos issues in the UK, India and the U.S. The bad old days when the asbestos industry had a stranglehold on national asbestos debates is well and truly over.

Full report available here.

In unity,

Linda Reinstein
Asbestos Disease Awareness Organization
1525 Aviation Blvd. Suite 318
Redondo Beach, California 90278


Breaking the logjam of injustice

May 6, 2008

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 21st 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 3rd 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 3rd 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.


W.R. Grace tries to define its way out of asbestos poisoning

April 17, 2008

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.


PHLBI announces position on asbestos ban legislation

April 4, 2008

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
http://www.phlbi.org


Paul Zygielbaum letter to Congress regarding Ban Asbestos Act

April 3, 2008

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.


House Democrats craft asbestos-ban bill stricter than Senate version

April 1, 2008

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