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“THE FAIRNESS IN ASBESTOS INJURY RESOLUTION ACT OF 2004” mentioning the U.S. Dept of Labor was published in the Senate section on pages S3965-S3967 on April 8, 2004.
The publication is reproduced in full below:
THE FAIRNESS IN ASBESTOS INJURY RESOLUTION ACT OF 2004
Mr. LEAHY. Madam President, we have had months of bipartisan negotiations on legislation to enact a national trust fund for victims of asbestos-related diseases. I am concerned that our distinguished majority leader and Senator Hatch have now introduced a partisan asbestos bill. We all agreed over the past couple of years of hard work on this issue that only a bipartisan bill will pass.
I held the first hearing on the problem of asbestos litigation a couple years ago. We worked closely with Republicans and Democrats, and I had hoped the bipartisan dialog over the past year would yield a fair and efficient compensation system that we could, in good conscience, offer to those suffering today from asbestos-related diseases and also to victims yet to come. But I am afraid the Senate majority has decided to walk away from those negotiations and to report to unilateralism by introducing a partisan bill.
I have offered, as has Senator Daschle, to work very hard on this issue. When I heard one was going to be introduced yesterday, I actually tried very hard to see if I could get a copy of it. Hours after it was introduced, we were finally given one.
We have all learned a great deal about the harms wreaked by asbestos exposure since that first Judiciary Committee hearing I talked about that I convened in September of 2002.
Asbestos is the most lethal substance ever widely used in the workplace. Between 1940 and 1980, more than 27.5 million workers in this country were exposed to asbestos on the job. Nearly 19 million of them had high levels of exposure over long periods of time. Even with all that, unbelievably, asbestos is still used today.
What we face is an asbestos-induced disease crisis--hundreds of thousands of workers and their families have suffered debilitating disease and death due to asbestos exposure. These are the real victims of the asbestos nightmare, and they must be the first and foremost focus of our concern and effort in this body. These are people who, by simply showing up for work, now must endure lives of extreme pain and suffering and often early death.
Not only do the victims of asbestos exposure continue to suffer, and their numbers to grow, but the businesses involved in the litigation, along with their employees and retirees, are suffering from the economic uncertainty created by this legislation.
More than 60 companies have filed for bankruptcy, and their bankruptcies have a devastating human and economic effect. Those victims who deserve fair compensation, of course, cannot get it from a bankrupt company.
I worked with Senators Daschle, Dodd, Frist, Hatch, and Specter. We asked representatives from organized labor, from the trial bar, from industry to help us reach a consensus on our national trust fund to fairly compensate asbestos victims and to provide financial certainty for asbestos defendants and their insurers.
A successful trust fund--one that will give fair and adequate compensation, would bring reasonable financial certainty to defendant companies and insurers--includes four essential components: appropriate medical criteria, fair award values, adequate funding, and an efficient expedited system for processing claims.
During the markup session of the first FAIR Act, we unanimously adopted the Leahy-Hatch amendment on medical criteria. During the mediation process established by Senator Specter and Judge Edward Becker, the interested stakeholders focused on crafting a streamlined administrative process and both Judge Becker and Senator Specter deserve credit for the enormous amount of work they put in on this. But we have not reached consensus on two other essential components: fair award values and adequate funding.
Although the changes made to a few award values by Senator Frist moved in the right direction, the bill introduced last night does not move far enough. In fact, seriously ill victims will receive less compensation, on average, under the current version of the FAIR Act than they would in the tort system.
Actually, the FAIR Act, as I say on this chart, is not fair. Victims with asbestos-related lung cancer with at least 15 weighted years of asbestos exposure could receive only $25,000 in compensation, basically a crude joke of the victims, especially given most lung cancer victims are going to die within 2 years. It is a cruel joke also on their families.
Not only that, we find they may have their awards reduced or even eliminated to repay insurance companies. That is so contrary to most existing compensation programs. For example, the Radiation Exposure Compensation Act, the Energy Employees Occupational Illness Compensation Program Act, and the Ricky Ray Hemophiliac Relief Fund Act all contain strong antisubrogation language to protect awards to victims under these compensation programs.
Our bipartisan medical criteria have already eliminated what businesses contended were the most troublesome claims. We all say we need to compensate the truly sick, but fair compensation is not free compensation.
Our bipartisan agreement on medical criteria is going to be meaningless if the majority, in effect, rewrites the categories by failing fairly to compensate those who fall within them. We need a balanced solution. We need one that can be supported by all Members in this body.
Even with consensus on medical criteria, if the award values are unfair, the bill will be unfair and unworthy of our support, which sadly is the case with this partisan bill.
Since the first hearing on this issue, I have emphasized one bedrock principle: The solution we reach must be a balanced solution. I cannot support a bill that gives inadequate compensation to victims. I will not adjust fair award values into some discounted amount to make the final tally come within a predetermined, artificial limit. That is not fair.
We have been told, however, the majority will support a bill that contains funding with a goal of raising $109 billion over 24 years. But it is clear from projections of future claims this funding is inadequate to pay fair award values to present and future asbestos victims. Indeed, it is a cut of more than $40 billion from the total funding approved in the Judiciary Committee under contingency funding amendments by Senators Feinstein and Kohl. It is not fair. All reflections show it is not enough.
The partisan emphasis in this bill on the interests of the industrial and insurance companies involved, to the detriment of the victims, has predictably produced an imbalanced bill. This bill is a reflection of the priorities that went into it. For us to succeed in reaching the consensus solution we have sought for so long, a workable bill should fairly reflect, and not discount, the significant benefits a fair solution indisputably would confer on the companies involved. A trust fund solution would offer these firms reasonable financial security. Even a casual glance at the way the stock values of these firms have closely tracked the Senate's work on this issue is enough to make this fact crystal clear.
Given all of these serious problems, I believe forcing this new asbestos bill through the Senate in its present form would prove counterproductive, even fatal, to the legislative effort. The near party-line vote within the committee on the earlier bill is more of a setback than a step forward even after all of our work. Proceeding further without consensus would be another mistake.
Instead, we should go back to work, build on those areas where we have bipartisan consensus, and then produce a bill that will help the asbestos victims in this country, will bring certainty to the companies that are laboring under possible liability, and will let the country go on with its business.
The PRESIDING OFFICER. The Democratic leader.
Mr. DASCHLE. Madam President, I will use my leader time under the order of the day, and I would make a note I will designate Senator Kennedy to control the time once we move to the pension conference report.
The PRESIDING OFFICER. The leader has that right.
Mr. DASCHLE. Madam President, I compliment the distinguished Senator from Vermont for his statement on asbestos. I do not know of anybody in our caucus, perhaps in the Senate itself, who has done more and has been more engaged on this issue for a longer period of time than has Senator Leahy. We would do well to listen to his sage advice and his critique of the asbestos legislation that is now working its way on to the Senate calendar.
As our Nation continues to grapple with the terrible consequences wrought by the use and distribution of asbestos, Senators from both sides of the aisle have been working diligently to negotiate a compromise. With each passing day, more victims face serious illness and even death, and more workers and companies face the threat of bankruptcy.
Approximately 1.3 million Americans are still exposed to asbestos at work. Ten thousand Americans die from asbestos-related illnesses each year. That is more than from drownings and fires combined.
In my home State of South Dakota, asbestos liability has been a major issue for businesses and individuals. In the cities of Aberdeen and Brookings, I have talked with the leadership team at 3M to discuss the impact this issue is having on their business.
3M employs 1,300 workers whose livelihoods are tied to the company's financial stability and strength. The corporation's management has told me how asbestos lawsuits have begun to overwhelm 3M, as over 300,000 suits have already been filed against their company, even though they were not in the business of producing or manufacturing asbestos.
At the same time, there are many South Dakotans who have become sick or died because of their exposure to asbestos. For instance, Jack Archer from Sioux Falls was a career electrician for 47 years working on dams along the Missouri River, and in aluminum plants and paper mills. After a long day of work, he would often come home covered in asbestos, and would shake off the dust and change clothes away from his house so his children and wife, Maurine, would not be exposed. In January 2000 he was diagnosed with mesothelioma.
Jack had seen many of his co-workers and friends die from the disease, and knew the illness that awaited him. Once diagnosed, Jack's body deteriorated rapidly, and each day brought more pain than the last. He died in July 2002. His wife now tries to remember his vitality and zest for life, rather than the years when cancer got the better of him.
Asbestos has created havoc all across the country, in homes and neighborhoods, mines and manufacturing plants, financial markets and board rooms. One study states that 300 companies were sued in the 1980s, while approximately 8,400 companies have been sued as of 2002. In addition, at least 70 companies have sought bankruptcy protection due to asbestos litigation.
Clearly, a solution is needed. For years, I have expressed my strong desire and commitment to find one. As I have said repeatedly, there is a way for us to craft legislation that could enjoy the overwhelming support of the Senate, if we put partisan differences aside and develop a true compromise that adequately compensates victims and provides financial certainty to companies and insurers.
Creating a national asbestos trust fund is an extraordinarily complex undertaking. There are a number of issues that all sides agree must be addressed: The creation of a no-fault administrative system; the equitable allocation of contributions; the establishment of reasonable medical standards; the resolution of pending claims and settlements; the creation of fair compensation values; and ensuring transparency of the system for both victims and corporate stakeholders.
Last July, the Judiciary Committee narrowly reported out a bill that was opposed by the American Insurance Association and the AFL-CIO. Since that time, there has been much work invested to try to develop a compromise and bridge the differences between the stakeholders. However, while much progress has been made, there are still several vital issues that have yet to be resolved.
During the committee markup, a compromise was reached on one of the major issues, medical criteria. Then, in the past few weeks, a compromise was reached on creation of the administrative structure within the Department of Labor. Yesterday, a new asbestos bill was introduced. This legislation incorporated some of the agreed upon compromises, and included some improvements.
However, it also takes a step backward in other areas. The new legislation dramatically altered or dropped altogether several of the key committee-adopted amendments. For example, the new bill restricts the amendment that would have restored current legal rights to victims if the fund runs out of money, adding new obstacles to access to the courts.
In addition, the new legislation failed to improve provisions that could limit recovery to only $25,000 for lung cancer patients who were exposed to asbestos at work for at least 15 years. That is in the bill. The so-called FAIR bill actually has a provision that says victims with asbestos-related lung cancer and 15 weighted years of asbestos exposure would receive only $25,000 in compensation. I literally cannot imagine how anybody could support legislation that says that is all they are entitled to. Fifteen years of weighted asbestos exposure, you have cancer, there is a connection, and your award under this bill is
$25,000?
Finally, it puts the overall funding at $109 billion. Some Republicans argue investment income would boost that up to $114 billion, but this is far from certain. Even $114 billion is grossly inadequate.
Clearly, there are several fundamental areas that have not been resolved. These issues are not new. In fact, before, during, and after the committee markup, Democrats have raised some of these same concerns. For over 6 months we have been clear that $114 billion is insufficient. While we recognize that Republicans are reluctant to accept the committee-supported bill of $154 billion, we have expressed our willingness to work out a compromise.
Time is short. The majority leader has stated his interest to bring the bill to the floor immediately following the April recess. We can and should develop a solution.
But let me be clear: Securing a bipartisan compromise on asbestos is one of our top priorities. I stand ready and willing to work with my colleagues to address this important issue. But we will not support and we will do all we can to avoid passing legislation that is not fair, that does not address the problem, that will only compound the problems of those who are victims today.
I continue to believe that if we work together, we can develop effective reform legislation to provide appropriate compensation to the victims of asbestos, while providing a measure of certainty and security to American industry.
If, however, the Senate proceeds with legislation that does not reflect the middle ground, as I have said, we will have missed an opportunity to address this vital issue. I think we could all agree the stakes are too high to let it slip away.
Madam President, how much of my leader time remains?
The PRESIDING OFFICER. The Senator has used 9 minutes.
Mr. DASCHLE. Madam President, I have another matter I would like to address in the time I have remaining of my leader time, if I could.
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