[Congressional Record Volume 150, Number 51 (Tuesday, April 20, 2004)]
[Senate]
[Pages S4166-S4169]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           THE ASBESTOS BILL

  Mr. DURBIN. The bill pending before us is known as the Hatch-Frist 
asbestos bill. Asbestos is a common material that those of us my age 
remember throughout our lives. It has been used in building materials, 
tiles, insulation, coverings for pipes, and so many different uses. We 
used to view it as that fireproof material that was safe and, frankly, 
protected us. Over the years, we came to learn that it was much 
different. It turns out that asbestos is an insidious threat to public 
health. It is insidious, in that there is virtually no safe level of 
exposure. It is insidious in that it is a random killer. We know of 
workers who have been in the asbestos industry their entire lives and 
never once showed any problem--no illness, no symptom, nothing. We know 
in the same circumstances that many of these workers find that their 
wives have come down with serious asbestos-related diseases, even 
though their wives never set foot in their workplace. Puzzled by this, 
we started looking into it and found that even though the worker might 
not have been susceptible to asbestos-related diseases, his wife, who 
merely laundered his clothes, picked up enough dust in that process to 
end up infected, diseased, and destined to die. That is how it is such 
a random killer.

  We also know, despite all of the compelling evidence about the danger 
of asbestos, that we continue to import massive amounts of asbestos 
each year in the United States. While we sit here and argue about how 
the companies responsible for asbestos-related disease and death should 
be held liable, when we talk about how victims should recover, the 
simple reality is that asbestos is alive and well and still to be found 
across America. New victims of asbestos are being created every single 
day by companies that know the risk and are willing to endanger their 
customers and employees for profit.
  I don't have a lot of sympathy for those companies. They know the 
danger and they continue to use asbestos in some forms in a dangerous 
manner.
  It is regrettable that the bill before us today did not go through 
committee. It is regrettable this bill was not debated. This is an 
extremely important issue. Twenty years ago, I was a brand new 
Congressman and I was invited to fly to Colorado right outside Denver 
to visit the national headquarters of Johns Manville Corporation. I 
didn't know why they wanted me out there 20 years ago, but they asked 
me to come out so I did fly out. I went to this beautiful headquarters, 
located outside of Denver in a magnificent building, and they told me 
they were having a problem with asbestos-related lawsuits.
  At that time, in August of 1982, Johns Manville was preparing to file 
for bankruptcy protection because of the lawsuits being filed against 
it. At that time, if anyone suggested that 20 years later, in 2004, 
there would be over 70 companies facing bankruptcy, such as Johns 
Manville, including some of the Nation's largest manufacturers, people 
would have said that would be impossible. Certainly these companies 
still would not be sued like Johns Manville and they still wouldn't be 
selling asbestos products in America in 2004, would they?
  The simple answer is yes. Those products continue to be sold. The 
people who were victims of those diseases continue to be discovered.
  If anyone during the 1970s and 1980s had suggested that by the 21st 
century, the number of legal claims being filed for asbestos injury 
would have been rising instead of falling, those predictions would have 
been ignored. Yet, those predictions have all come true. Let me show 
you a chart to give you an idea of the incidence of asbestos-related 
disease in America. This is for 2002.
  If you look at asbestos-related deaths here, you will find some 
10,000 deaths. As I said, the number of deaths related to asbestos is 
on the rise in America. So there are only three other areas of death 
here that are larger in numbers: AIDS, of course, some 20,000 victims, 
almost twice as many; alcoholic liver disease, some 12,000 victims; 
firearm deaths, right around 12,000; and then asbestos. Then look at 
all of the other causes of death that claim fewer victims than 
asbestos: skin cancer, hepatitis, asthma, drowning, fires, Hodgkin's 
disease, and tuberculosis.

  This is a serious public health problem in America. Asbestos is an 
ongoing environmental and health issue.
  To better understand the true cost of asbestos, we need to recognize 
both sides of the litigation, not only companies facing bankruptcy but 
victims facing disease, debilitation, and death. From my experience 
talking with people, it seems most Americans were under the impression 
that asbestos has been banned.
  I will tell you a story about that and let you know that didn't 
happen, at least it didn't happen on a permanent basis. Asbestos is 
still in buildings, schools, homes, offices, and workplaces--in 
automobiles. It is in and around 200,000 miles of drinking water

[[Page S4167]]

pipes that have been underground for 40 years and are now 
deteriorating. Sadly, very few of these items are being regulated by 
the Government. Why? Because there has been a systematic and long-term 
failure by the Government of this country when it comes to reining in 
asbestos use.
  Senator Patty Murray from the State of Washington has a bill to which 
we need to agree. It is a bill which will virtually ban, permanently, 
asbestos and asbestos products in America with few notable exceptions--
where it is contained and can't be dangerous. Let me tell you the 
history leading up to S. 1115, the Patty Murray bill, which is so 
important.
  In July of 1989, the EPA announced the manufacture and sale of most 
asbestos products would be banned. The decision came after 10 years of 
research and $10 million in spending. The EPA's ban was premised on 
authority granted to it by the Toxic Substances Control Act, and it was 
intended to stop the export of asbestos from America as well. The ban 
was instituted in three stages: a ban on roofing and flooring felt, 
tile, and clothing made from asbestos by 1990; brake linings, 
transmission components, and the like; and a ban on the use of asbestos 
in pipes, shingles, brake blocks, paper, and the like.
  As predicted, a lawsuit was filed by asbestos companies and 
industrial organizations to challenge the EPA ban. The companies argued 
the ban was just too costly for industry and that alternatives to the 
use of asbestos were neither safe nor effective.
  The EPA defended the proposed ban. However, it lost in the Fifth 
Circuit U.S. Court of Appeals. They said the EPA failed to demonstrate 
``substantial evidence'' to justify the ban. Specifically the circuit 
court found the Agency's administrative record failed to show the ban 
was the ``least burdensome alternative'' for dealing with the 
unreasonable risk posed by asbestos. The circuit court did acknowledge 
that asbestos was a potential cause of cancer at all levels of 
exposure--underline all levels of exposure. There is no safe level of 
exposure to asbestos. If you think, just because you have a ironing 
board cover at home that gets hit by the iron as you are ironing your 
clothes, only a tiny bit of asbestos dust is floating around your 
house, be prepared to accept the obvious. It is dangerous at any level 
of exposure.

  President Bush's father and his administration in 1991 would not 
appeal this decision by the Fifth Circuit, so since then, the EPA, 
unfortunately, has made no further effort to ban asbestos, and it is 
doubtful this administration in the closing months of this year will do 
so.
  For those who are watching this debate, following it, I recommend a 
book that opened my eyes to the deep and sad history of the use and 
ongoing danger of asbestos. The book is called ``Fatal Deception: The 
Untold Story of Asbestos.'' The author's name is Michael Bowker. He 
talks about the hazards of asbestos discovered in the mining town of 
Libby, MT. You ought to read these stories about what happened to the 
unsuspecting miners and their families who worked for W.R. Grace and 
other companies, dealing with asbestos in Libby, MT.
  He gives a detailed explanation of the dangers of the product, not 
just for the workers, as I said earlier, but also for their families. 
This book, and another called ``The Asbestos Tragedy'' by Paul Brodeur, 
are significant because they reveal the deep, dark, dangerous secrets 
of asbestos mining and manufacture.
  Let me share a few examples. By the early 1930s, asbestos workers had 
developed asbestosis and were bringing lawsuits against Johns 
Manville--the 1930s, more than 70 years ago. The largest asbestos 
manufacturer--again, Johns Manville--and Raybestos-Manhattan of 
Connecticut, the second largest asbestos company, faced lawsuits. As a 
result, the two firms, together with other leading asbestos 
manufacturers, initiated a systematic coverup of the dangers of 
asbestos that continued for more than 40 years.
  In 1933, Lewis Herold Brown, the president of Johns Manville, advised 
the company's board of directors that 11 pending lawsuits brought by 
employees who developed asbestosis while working at the company's plant 
in Manville, NJ, could be settled out of court, provided the attorney 
for the injured employees could be persuaded not to bring any more 
cases. That is 1933. The first asbestos lawsuits were being filed, the 
first notice being given to American business that they were dealing 
with a dangerous, toxic, lethal product.
  In 1935, Sumner Simpson, the president of Raybestos-Manhattan wrote a 
letter to Vandiver Brown, of Johns Manville, telling him:

       I think the less said about asbestos the better off we are.

  Brown, in a followup letter, replied:

       I quite agree with you that our interests are best served 
     by having asbestosis receive the minimum of publicity.

  Is that corporate misconduct? Is that the kind of irresponsible 
conduct we would countenance today or even make excuses for? Or do it?
  In 1936, Brown and Simpson, together with officials of other 
companies, arranged to finance animal laboratories at the Trudeau 
Foundation's Saranac Laboratory in New York. The studies showed 
significant numbers of animals developed asbestosis after being allowed 
to inhale it. These results were suppressed, made secret for more than 
40 years.

  The case goes on and on. Some of the things that were said during the 
course of events are nothing short of incredible. There is one in 
particular that is worth noting. On September 12, 1966, more than 30 
years after the discovery of asbestos danger to factory workers and 
people exposed to it, E.A. Martin, the director of purchasing for 
Bendix Corporation, wrote to an executive at Johns Manville. This 
letter was disclosed in the course of a lawsuit from the director of 
purchasing for Bendix Corporation writing to Johns Manville about 
asbestos.
  He says:

       So that you'll know that asbestos is not the only 
     contaminant a second article from OP&D Reporter assesses a 
     share of the blame on trees.

  Then he closed:

       My answer to the problem is: If you have enjoyed a good 
     life while working with asbestos products why not die from 
     it. There's got to be some cause.

  What an attitude when it comes to the workers and the consumers of 
asbestos products.
  When we debate this issue with appropriate sympathy for the economic 
plight of many companies that are far removed from those I quote, 
understand we came to this moment in our history with the epidemic of 
asbestos-related disease and death because of clear and convincing 
corporate misconduct for 50 years. Businesses that knew better 
endangered and imperiled their workers and consumers with this product 
to make money. And the cavalier, if not demonic response, from people 
like E.A. Martin is proof positive of that worst example of conduct.
  During the last Congress, in September 2002, Senator Leahy held the 
first hearing on the state of asbestos injury litigation. We considered 
what we could do. Senator Hatch has held a couple of hearings since 
then and moved the ball further along. We heard testimony from expert 
witnesses on both sides, a lot of different stakeholders being present. 
There is probably no issue in Washington that has received more 
attention from both sides.
  Last spring, Senator Hatch introduced a bill as a starting point for 
negotiation. I was skeptical of the bill but told him I was willing to 
work with him and others in good faith to try to find a way to deal 
with the increasing number of asbestos-related lawsuits. I generally 
support the concept of a no-fault trust fund. If we can reach that 
moment in time where there is an adequate amount of money in a trust 
fund, where workers and others who have been exposed to asbestos can 
step forward, make their medical claim, and then receive compensation 
without lengthy litigation and expensive attorney's fees, this is a 
good result and a fine and positive thing.
  I am sorry to report the bill before the Senate does not reach that 
level. I agree with many Illinois company representatives who have come 
to see me that they need certainty about their exposure to liability in 
the future. We can provide it as long as we have a bill that is 
fundamentally fair.
  I also agree with the victims of asbestos injury and their widows, 
whom I have met, we need to come up with a quick and easy process to 
issue these

[[Page S4168]]

payments. We have an opportunity now to do it.
  Leading up to last summer, I thought we were going to reach that 
point. But there were several things about Senator Hatch's original 
bill that we found out were problematic. The Hatch bill was designed to 
provide certainty to parties who, collectively, was only going to have 
pay into a trust fund about $90 billion. It did not provide certainty 
to the victims, only certainty to the companies in terms of their 
liability. Certainly, $90 billion is a lot of money, but when you look 
at the real cost we may face for asbestos-related claims in the future, 
it may not be nearly enough. We may need twice as much.
  The committee finally increased the value of the trust fund in the 
Hatch bill to $153 billion. It is interesting that after we reported 
that bill, the insurance industry, one of the major players in 
supplying the money for the trust fund because of their ultimate 
liability, announced they would not support it because it cost too 
much. We have been hung up on this issue of how much to put in the 
trust fund.
  There is also a question about what happens if we guess wrong. What 
if the trust fund does not have enough money? What if there are too 
many victims? What happens to those victims if the trust fund runs out 
of money? Don Nickles, a Republican from Oklahoma, fears from his point 
of view the Government will be asked to step in and replenish the trust 
fund with unlimited liability in the future. He is so skeptical of the 
amount of the trust fund in the bill pending before the Senate he 
announced he will oppose it. He does not think it will be enough for 
payouts and taxpayers in the future might be left holding the bag 
rather than the companies and insurance companies that are today 
responsible. That is a valid point to raise.
  Claims values are another element. What is it worth? What if you have 
the worst possible asbestos-related disease, known as mesothelioma, 
which is a form of lung cancer which is ultimately fatal? What is it 
worth for you in terms of its value if you are an innocent victim of 
this mesothelioma? I will show some photos in a few moments of the 
victims. You will understand they are people, many of whom had no idea 
that exposure to asbestos was dangerous. What do you do if you were 
exposed to this asbestos and are in a situation where you end up with 
the disease or face a fatal situation at a later point? How much is it 
worth?
  The question before the Senate on mesothelioma was whether $1 million 
is adequate. I can state the current litigation and current awards that 
are given in lawsuits are significantly larger, even after considering 
attorneys' fees. That $1 million might be a good value to a family if 
it did not take an attorney and years in court to reach that number, 
but we have to at least be honest that some of the valuations in the 
pending bill are not adequate.
  This bill, since markup in the committee, has disappeared and 
reappeared, with Senator Frist and Senator Hatch working together. This 
was an arrangement, a compromise among the principals on the Republican 
side which did not involve any Democrats, to my knowledge, and did not 
involve any of those who were critical of the original bill. It was 
brought on a take-it-or-leave-it basis--again, with no hearing on the 
new bill.
  The new bill, sponsors claim, will provide up to $124 billion, $57.5 
billion from defendant companies, $46 billion from insurance companies, 
unspecified sums from existing trust funds. There is a concern as to 
whether that is enough money, as I mentioned earlier. This bill, though 
it is claimed to be the FAIR Act, may not be fair when it comes to 
victims and the recovery.

  I am concerned with some of the statements made in the Senate. My 
friend, Senator Hatch of Utah, said in the Senate when he introduced 
the bill April 7th:

       Some say--I think somewhat cynically--many of our 
     colleagues on the other side are not going to vote for this 
     bill because no amount of money is going to make them 
     satisfied because two of their major constituencies are 
     against the bill, and have been, so far, against any bill.

  Senator Hatch went on to say:

       Some have said they are afraid the personal injury bar will 
     not put up at least $50 million for John Kerry in this 
     election if they vote for the bill. Others are saying without 
     that money, they might not be able to elect John Kerry 
     President. I think that is a pretty cynical approach, of 
     course.

  Let me say to my friend, Senator Hatch, that is an element of this 
debate which should have been left outside of the record. I don't think 
it is good to question the motives of either side of the aisle. We see 
this very contentious issue from a different perspective. But to 
suggest we are being driven by campaign contributions, I hope, is plain 
wrong. In my case, it is wrong and I don't believe we should raise that 
as part of the specter of this debate.
  Let me say before I go into the victims' stories, we have an 
opportunity to do some good and to pass a bill creating an asbestos 
trust fund, but we need to adequately fund it. We need to also make 
certain pending settlements and awards are not extinguished by this new 
trust fund. We need to make sure the level of compensation for victims 
is adequate. We can do it. But we need to work on a bipartisan basis to 
achieve it.
  Let me show a few of the victims that tell the story. This is John 
Rackow of Lake Zurich, IL. He grew up in Chicago, IL, and eventually 
moved to the suburbs. He is a businessman, married, with three kids. He 
worked for a lot of different companies and was involved in property 
development. He was athletic, very active. He started noticing 
shortness of breath. An avid golfer, his game was off. He went to the 
doctor and his doctor discovered he had mesothelioma, the worst form of 
asbestos-related lung cancer.
  He did not want to believe the result. He went to a lot of different 
doctors for treatment and relief of the pain. But, unfortunately, he 
became so weak he was ultimately hospitalized. He became weaker by the 
day and passed away at the age of 64.

  This gentleman shown in this picture is also from my home State of 
Illinois, former policeman Donald Borzych, of Tinley Park. He grew up 
in Chicago, IL. He attended parochial schools in the city and studied 
for the priesthood. Donald eventually chose to become a Chicago police 
officer.
  While in school, he worked with various construction companies. You 
will find that a recurrent theme. Donald was handy with home and auto 
repairs.
  After retiring, he and his wife enjoyed traveling and spending time 
with friends. Donald found himself tired and short of breath. He went 
to a doctor and was diagnosed with malignant mesothelioma. He went 
through numerous treatments but with no positive results. He was 
accepted to an experimental program and lost his hair. He has been in 
treatment for over 2 years.
  I met with several widows of the victims of asbestosis and 
mesothelioma. One of those who really brought the issue home to me was 
the widow of my former colleague, Bruce Vento. Bruce was a great guy. 
He was a Congressman from the Minneapolis-St. Paul area. I served with 
him for 14 years in the House of Representatives. I saw him in the gym 
every morning. He thought a lot about his health and physical 
condition. He always worked out and wanted to be in good shape.
  Then he started to feel pretty poorly. He went to the doctor, and he 
said: You have asbestos-related disease. You have mesothelioma. It 
turned out Bruce contracted this disease even though he did not smoke 
because he was exposed to asbestos as a youngman when he worked for a 
company that installed asbestos products at job sites.
  He eventually succumbed and died from this disease. It was a great 
loss to the State of Minnesota and to the U.S. House of 
Representatives. I think Bruce Vento was a wonderful person. His wife 
Susan is also a wonderful person. Susan has now taken up Bruce's cause 
and is arguing for fair compensation for victims.
  Let me tell you about a couple of others who may surprise you if you 
did not know they were victims of mesothelioma, asbestos-related 
disease.
  ADM Elmo Zumwalt, Jr., graduated from the Naval Academy in just 3 
years, yet ranked seventh in his class. He was the youngest person to 
ever serve as Chief of Naval Operations in the United States of 
America. He commanded the U.S. Naval forces in Vietnam. He was the one 
who crusaded to help those who were involved in exposure to agent 
orange after the Vietnam war.
  In 1999, doctors found a tumor in the admiral's left lung. He was 
diagnosed

[[Page S4169]]

with mesothelioma, based on exposure to asbestos while serving in the 
U.S. Navy. He underwent a tracheotomy but only survived for just a few 
months.
  Here is a rather famous actor from my generation, Steve McQueen. He 
died of mesothelioma. It turns out, as a young man he had been exposed 
to asbestos when he was working odd jobs in construction areas. And 
McQueen was one of these handsome, dashing heroes on the movie set who 
ultimately was reduced to a shell of a man by this crippling and 
debilitating disease.
  I tell you this because I want you to understand in the course of the 
debate that it is not just the blue-collar workers who are the 
victims--and many of them are--but people who went on to high and lofty 
positions in life, whether they served in the U.S. Navy or became movie 
stars or went on to Congress, never knowing they were carrying within 
their lungs the seeds of their death, the asbestos-related fibers.

  When we say we want to make certain that tomorrow's victims are going 
to be compensated, it is because we do not know how many time bombs are 
ticking in America today. I do not know if I have been exposed to 
asbestos. No one listening to this debate can possibly say whether they 
have been exposed to asbestos because it was so prevalent and was to be 
found in almost every place we turned.
  So when we talk about having adequate funds in the trust fund for 
this to be a payout that is worthy of the disease and death that it has 
caused, I think it is not an unreasonable request.
  Many say this debate this week and the vote is really just symbolic. 
Sadly, too many things around here have just become symbolism. There 
was no real genuine effort to hammer out a bipartisan agreement, no 
effort to compromise. We are being given this bill on a take-it-or-
leave-it basis. Each of us will get up and say a few words about the 
bill. I obviously oppose it. But I sincerely hope, after it is 
defeated--I think it will be--we will sit down and talk about a trust 
fund that is fair to victims, a trust fund that is fair to companies. 
And I would implore those company representatives who come to see me, 
and their insurance companies, to come up with a dollar figure that is 
fair, that gives you some certainty about your future. That is what you 
tell me over and over is what you want. You want to know what your 
liability is going to be so you can plan for it. It is the uncertainty 
of the current system, you say, that makes it so difficult to stay in 
business. I want to work with you on that. I think a lot of the Members 
of the Senate do, on both sides of the aisle.
  But bringing a bill with a take-it-or-leave-it number in it of less 
than $124 billion is not an answer.
  Mr. President, I yield the floor. I want to personally thank you for 
staying. I did not realize you had a 7 o'clock appointment. I hope I 
can return the favor to you.

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