Sen. Patty Murray (D-Wash.) has a problem with Senate Judiciary Chairman Orrin Hatch’s (R-Utah) high-stakes proposal to set up a federally managed $108 billion settlement fund for victims of asbestos exposure.
Unlike most critics of the bill, however, her key concern is not about including a more expansive definition of asbestos victims nor ensuring that the federal government does not foot the bill for company abuses.
Murray has been more intent on trying to convince Hatch and other Senators to also pass legislation that will ban, once and for all, the current use of asbestos in a variety of consumer products.
“It’s the most obvious, yet least-discussed, aspect of asbestos,” said Murray. “Like most Americans, I thought asbestos was already banned.”
It’s an issue that Murray acknowledges has taken many people by surprise, considering that the dangers of inhaling asbestos fibers through contaminated home insulation as well as through mining has been known for decades.
Even Hatch — who has been in talks for months trying to get insurance companies, the asbestos industry and labor leaders to agree to a standard award for asbestos victims and a fixed amount for a settlement trust — was not aware of the legality of asbestos until Murray began pursuing the issue aggressively.
“We were all a little surprised that it wasn’t already banned,” said a GOP Senate Judiciary aide.
The Environmental Protection Agency did try in 1989 to ban the naturally occurring mineral whose miniscule fibers, if inhaled in large quantities, can cause lung cancer and other respiratory ailments. But manufacturers of products that use asbestos, whose heat-resistant properties, they say, make it essential in many products, sued the EPA — and the rules were overturned by a federal court in 1991.
Asbestos is currently banned for use in home insulation and some other products, but it is still used in so-called friction products, such as brake shoes and clutches, in roofing materials and sealants, as well as in some gaskets.
Previously, asbestos was used for manufacturing vinyl floor tiles, caulks, electrical and heat insulation, chalkboards, plastics, textiles and a number of other common consumer products that may still be in many homes and businesses, according the U.S. Geological Survey. USGS also estimates that only 15,000 metric tons of asbestos are currently used in the United States, down from the 719,000 tons used in 1973 at the height of asbestos use.
While asbestos use has declined significantly in the United States as alternative heat-resistant materials are developed, Murray argues that if Congress is going to set up a fund for asbestos victims, it should also prevent the possibility of any new asbestos exposures.
“If we’re going to be protecting companies [from future litigation], we should also be protecting future victims,” she said in an interview.
Murray’s bill, which mirrors the EPA’s proposed 1989 ban, would require the agency to ban the manufacture, processing, importation and distribution of products that contain asbestos within two years.
Hatch said he was interested in working with Murray to attach her bill to the asbestos litigation bill that he has been brokering, but indicated that he is skeptical of the proposal.
“That’s a nice argument,” Hatch said of Murray’s fear that more people will be exposed to asbestos in brakes and roofing tar. “But on the other hand, there may be an argument that asbestos is a valuable product that can be handled responsibly.”
So far, staffers for Hatch and Murray have exchanged phone calls, but they have not yet met to work out the details. The GOP Judiciary aide said Hatch’s decision likely would rest on how much momentum Murray could generate for her measure.
“I’ve not heard from a single person who opposes this proposal, but I’ve also not heard from a single person who supports it either, besides Senator Murray,” said the aide.
Murray counts six co-sponsors of her measure, including Judiciary ranking member Patrick Leahy (D-Vt.). Sen. Dianne Feinstein (D-Calif.) has indicated her desire to offer the Murray legislation to Hatch’s bill during the committee markup, which could come as early as today, but is likely to be postponed until next week. Either way, Judiciary aides indicated the issue will likely have to wait for floor consideration to be resolved.
The underlying Hatch bill, which would set up a trust fund for asbestos victims and bar any future lawsuits against companies whose use of asbestos or asbestos-tainted material caused illnesses, is a response to the insurance and asbestos industries, who have been pressing for federal action.
They say more than 60 companies have been driven into bankruptcy from a flood of asbestos-related lawsuits, and that money for victims is rapidly evaporating due to million-dollar jury awards for a handful of the nearly 600,000 asbestos victims who have already filed claims.
Murray’s plan to ban asbestos could create more havoc for a bill that already is on shaky ground. Though Hatch is pushing the committee markup, he acknowledges that the disparate parties have yet to agree on its specifics.
The chairman has tried to step up pressure on the parties by repeatedly saying that if they cannot come to an agreement by the end of this month, they may not get any federal solution to the problem.
One insurance industry lobbyist indicated that adding Murray’s asbestos ban to the measure could endanger passage of the entire litigation bill.
“Without talking to the underlying policy in Senator Murray’s bill, we are simply concerned that it will distract discussion from the issue at hand, which is to resolve the crisis in asbestos litigation,” the lobbyist said.
And the asbestos industry argues that there is no need for an outright ban on the use of asbestos.
Bob Pigg, president of the Asbestos Information Association/North America, noted that asbestos is one of the most regulated products in the United States. Regulations on its use and acceptable exposures levels have been promulgated by the Occupational Safety and Health Administration, the Mining Safety and Health Administration, the Consumer Product Safety Commission, the Agency for Toxic Substances and Disease Registry, the National Institute for Occupational Safety and Health, the National Institute of Standards and Technology and the EPA.
Pigg, whose organization represents two Canadian asbestos mines and several roofing sealant manufacturers, said a ban on the current uses of asbestos would have “no impact” on public health.
Pigg said that for asbestos use in sticky roofing sealants, which accounts for nearly two-thirds of current asbestos use in the United States, “there is absolutely zero exposure to the user of that product to the asbestos fibers that are there.”
Though OSHA regulates manufacturing plants that use asbestos to make roofing sealant and other products, it no longer regulates the use of roofing sealant as a potential for exposure to asbestos, said Pigg. He added, “With today’s modern [manufacturing] plants and equipment, the exposure is very small.”
But Murray points to a series of articles in the Seattle Post-Intelligencer, which claimed that OSHA and other safety rules are regularly flouted by companies.
In a Nov. 16, 2000, article, the Post-Intelligencer reported on a survey its reporters conducted of auto repair shops in six states and the District of Columbia. It revealed that dust samples from 21 of the 31 brake repair shops surveyed contained unhealthy levels of asbestos. Air samples from nine brake repair shops revealed levels of asbestos in six that were about 43 times higher than what the EPA determines is an acceptable level.
But Pigg countered that in brake shoes and roofing tar, asbestos’ durability still makes it a preferred ingredient.
“It’s not an irreplaceable product, and there are some products without asbestos,” said Pigg, who added that by using asbestos, companies can make products “that will cost less, will last longer, and be more forgiving.”
Murray’s office flatly rejected that argument.
“Germany banned asbestos years ago, but they still are able to manufacture pretty decent cars,” said Murray spokesman Todd Webster.