[Congressional Record Volume 152, Number 13 (Tuesday, February 7, 2006)]
[Senate]
[Pages S740-S743]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 FAIRNESS IN ASBESTOS INJURY RESOLUTION ACT OF 2005--MOTION TO PROCEED

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of the motion to proceed to S. 852, which the 
clerk will report.

[[Page S741]]

  The assistant legislative clerk read as follows:

       Motion to proceed to S. 852, a bill to create a fair and 
     efficient system to resolve claims of victims for bodily 
     injury caused by asbestos exposure, and for other purposes.

  Mr. SPECTER. Mr. President, in addressing the motion to proceed where 
we are scheduled to have a vote at 6 o'clock this evening, the question 
is whether the problem of asbestos, causing thousands of people to have 
deadly diseases and forcing many companies into bankruptcy and 
resulting in a situation where people with the deadly diseases have no 
one to claim against, the issue is whether we have a problem which is 
worthy of the attention of the Senate. That is an easy question to 
answer; it is yes. That has been authenticated by the Supreme Court of 
the United States on several occasions where the Court has said the 
matter should be addressed by the Congress. That came up in a context 
where there were class action suits attempting to find the modality for 
dealing with the issue, and the Federal courts--ultimately, the Supreme 
Court--said class actions were not appropriate and it was a matter for 
the Congress of the United States.
  This problem has been intractable. It has been studied. There have 
been proposals for more than three decades. I first saw this issue soon 
after I came to the Senate after the 1980 election when Senator Gary 
Hart came to see me as a junior member of the Judiciary Committee on 
behalf of his constituent, Johns Manville. We have wrestled with this 
problem for decades.
  Finally, on an idea conceived by Senator Hatch to have a trust fund, 
the bill was reported out of the Judiciary Committee in July of 2003. 
But the bill had many problems. I then solicited the assistance of 
Federal Judge Edward Becker, a senior judge who had been the Chief 
Judge of the Court of Appeals for the Third Circuit, and in August of 
2003, Judge Becker convened a meeting in his chambers in Philadelphia 
attended by stakeholders. That is the name we gave to the various 
groups which had key interests in the asbestos bill. One stakeholder 
was the AFL-CIO, representing labor; another stakeholder was the 
manufacturers; another, the insurers; another, the trial lawyers. Even 
though the trial lawyers have been opposed to the bill because it has a 
major impact on their financial status--and I understand that--we 
included the trial lawyers in every step of the proceeding, trying to 
accommodate as many interests as we could. Even though someone was 
going to be opposed to the bill, we wanted to consider what they had to 
say. We wanted to produce a bill which was as good as we could possibly 
produce.
  Following those initial meetings in August of 2003 in Judge Becker's 
chambers, there have been meetings in my conference room--totaling 36--
attended by varying groups, from 20 to as many as 60, pouring out into 
the boundaries of the office from the conference room. What we have 
done has been to seek to accommodate every issue which has come up. We 
are still talking to Senators and still talking to companies and 
interested parties to find answers to their problems.
  One of the major issues has been the impact on small companies. That 
has been addressed by a number of Senators. Senator Kyl has taken the 
lead, and a proposal has been worked out to cap the contribution by 
smaller companies which have gross revenues below a certain figure. In 
addition, there is a fund of some $300 million annually for the 
administrator to take care of hardship cases so that no one, for 
example, should be driven into bankruptcy by what they have to pay. We 
have taken that into account.
  The figure of $140 billion was worked out by Senator Frist and 
Senator Daschle about a year and a half ago. It is a figure that grows 
from that originally put into the trust fund to that figure where CBO 
has given us the assurance that the range of cost will be somewhere 
between $120 billion and $135 billion. Under one contingency, it could 
go to $150 billion, but that is unlikely.
  We have within the structure of the bill a provision that the 
administrator can make a reevaluation, going through certain 
preconditions, so that if it looks as if we are going to exceed $140 
billion, we can make modifications in the medical standards and 
criteria to stay within the $140 billion.
  One factor is emphatically plain, and that is that there is no 
obligation by the Federal Government to spend a dime. There were three 
amendments directed during the committee process to make sure of that.
  There are possible technical points of order which may be raised, and 
we are in the process of trying to restructure the bill to eliminate 
them. At this point, I am not sure whether we can, but we are trying to 
do that, and we may be successful.
  But if a point of order is raised on the merits, it ought to be 
examined by Senators because there is no impact on the Federal budget. 
Technically, the expenditures are made by the Federal Government 
because the funds go through the Department of Labor, but they are only 
a conduit. There is no Federal money. So if you want to use 60 votes to 
defeat the bill, the point of order may be available, as I say, or may 
not be. But substantively there is nothing to the point of order 
because this bill does not have any impact on the Federal budget 
because there is no Federal money. The Department of Labor is just, 
plain and simple, a conduit.
  Similarly, if you want to defeat the bill on an obstructionist 
tactic, which is what is being undertaken now on a filibuster on the 
motion to proceed, the 60 votes can be used. Senator Reid was on the 
floor yesterday, and we had a disagreement. You might call it a 
disagreement. But the one thing that he did talk about involved the 
problems of people suffering from mesothelioma and other asbestos 
problems. So there is no doubt that the leader of the opposition, 
obstructionist No. 1, the Senator from Nevada, concedes the problem, 
concedes that we have a major problem. Now, that ought to be sufficient 
to proceed to see if we can solve the problem. Occasionally around here 
we ought to deal with a pending matter, whether it is a point of order 
or a motion to proceed, on the merits. What is involved in a motion to 
proceed is a decision by the Senate that we ought to consider 
legislation on this issue. If somebody has amendments, we are open. We 
have accepted more than 70 amendments in the committee. If somebody has 
a problem with constituents, I invite them to come to see me, my staff, 
or Senator Leahy.
  We have bipartisan support for this bill. Senator Leahy, Senator 
Kohl, and Senator Feinstein voted the bill out of committee. We have 
other support among Democrats. And I am talking to Senators on an 
individual basis and have visited with many of them in their offices 
and am available to do more.
  But the issue on a motion to proceed is whether you have problem, 
which we certainly do, and whether legislation ought to be considered. 
And if somebody has amendments, if somebody has a constituent who 
thinks the constituent company is being asked to pay more than a fair 
share which is jeopardizing the company, come to us. We have been 
considering individual cases, and we have been solving them in many 
instances. We are open for business.
  The distinguished Senator from Montana is going to address a problem 
in Libby, MT, where they have had environmental problems. Asbestos was 
used in a reckless, disgraceful, criminal manner by W.R. Grace & 
Company, and we are working to accommodate Libby, MT. There may be more 
that we can do for that issue. There are other so-called hot spots 
around the country, and we are taking them up.
  There have been issues raised about our medical criteria. We have 
studies by the Institute of Medicine. If you have a problem, we want to 
solve it. We want this bill to go forward.
  But on the narrow issue we are voting on at 6 o'clock this evening, 
any Senator who votes not to proceed is saying to his constituents, is 
saying to people suffering from mesothelioma, people suffering from 
asbestos exposure--anybody who votes no on the motion to proceed is 
saying there is no problem. Well, I think that is a pretty tough vote 
to explain, a pretty tough vote to explain that there is no problem, 
and it ought not to be considered by the Senate.
  Yesterday, in the discussions--you might call them that--with Senator 
Reid, I said this was certainly the most complex bill I have seen in 
the time I

[[Page S742]]

have been in the Senate. And I think it is fair and accurate to say it 
is the most complex piece of legislation ever considered by a 
legislative body. I know that is a pretty grandiose statement, and I do 
not know all the legislation considered by legislative bodies, but I 
think it is accurate.
  I challenge anybody to bring to my attention, to the attention of the 
Senate, any legislative proposal which has ever been undertaken and 
analyzed that is more complicated than this one, that has received more 
attention than we had in 36 meetings in my conference room, in dozens--
dozens--literally hundreds of meetings involving Judge Becker and 
myself and Senators.
  Enormous work has been done by Senator Leahy. I owe him a debt of 
gratitude for his cooperation and his leadership. Senator Feinstein has 
had innovative proposals on startup. As I say, Senator Leahy, Senator 
Feinstein, and Senator Kohl are cosponsors.
  So if anybody has an issue, I invite them to come forward. But I 
think it is an unconscionable vote to vote no on the motion to proceed.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Thomas). Who yields time?
  The Senator from Montana.
  Mr. BURNS. Mr. President, today I rise on this subject and first of 
all I want to congratulate--maybe that is not the word--the chairman of 
the Judiciary Committee, for tackling this important problem. I can't 
think of a time or a piece of legislation that has been so complicated 
and so important to my State of Montana. So I want to tell the chairman 
of the Judiciary Committee that the statement he made is right on 
target. Some of us that have been impacted by asbestos and asbestos-
related diseases take this very seriously. We need to vote to proceed.
  I want to tell you why I am involved in this and there are a couple 
of other issues that are also burning in our office right now that need 
my personal attention. When you go to Libby, MT, it is a little town in 
northwest Montana on the Kootenai River, and the W.R. Grace Company had 
a mine up there. And if you are not torn on this issue, both sides of 
it, the statement of Eva Thomson from up there I will just read her 
statement. That is why I am giving my statement with regard to Libby, 
because it is an isolated case.
  Eva Thomson said:

       I have two sons, both them and I have asbestos-related 
     disease. But they are not eligible by the standards in the 
     existing bill as it is today. If the bill cannot be done 
     right to protect us victims, please don't pass it at all. We 
     place 225 crosses in the cemetery this Memorial Day in 
     remembrance of asbestos victims. There are more than 20 new 
     crosses this year. We need help, real help, and she thanks 
     me.

  Yet I have another one from Charlotte Wade, who says:

       Please don't forget us. I watched my Dad Jack die in 2002 
     and my mother Margaret die and suffocate from asbestos in 
     2004. I'm next. I've been on oxygen since the year 2000. My 
     three grown children, no doubt, will follow.

  Jim Davidson, long time resident of Libby, MT. He has been diagnosed 
with mesothelioma:

       Because of the short time I have left, I'm vitally 
     interested in seeing that a compromise is reached to allow 
     passage of some type of relief to me and all others affected 
     by asbestos and worse. As you know, there's no other avenue 
     left to those of us in Libby, Montana, because of the 
     bankruptcy of W.R. Grace. So I urge to you work for some type 
     of help for us.

  Those are just three of hundreds in Libby, MT, that makes it a 
special place and harbors a special place in this piece of legislation. 
So I rise today to ask the Members of the Senate to remember the plight 
of the residents of this small town as this debate over the asbestos 
bill continues. I know a lot of folks have taken issue with the 
assertion that the Libby residents deserve special consideration. Well, 
I am here today to reiterate why this consideration is needed.
  The asbestos contamination in Libby is as widespread as any area in 
the country. Though a sparsely populated town, the residents of that 
city have been profoundly affected by this spread of asbestos-related 
diseases. The asbestos exposure in Libby is unlike any other place in 
the United States. While I know my colleagues lament that they have 
similar situations in their own States, I ask them to simply listen.
  The scope of asbestos exposure in Libby, MT, may never be known, but 
let me assure, you, Mr. President, that it is significant.
  When Governor Martz of Montana executed the so-called silver bullet 
under CERCLA, she triggered a fast track listing of Libby on the 
National Priorities List. There has only been one other time when the 
silver bullet has been triggered due to asbestos. But that case in 
Arizona was limited to 17 square acres, not the contamination of an 
entire town. And unlike the case in Globe, AZ, the asbestos in Libby, 
MT, can't simply be covered in a filter fabric and soil and rock, 
fenced to keep everyone out. Unfortunately we can't control the 
exposure in that way. And the people in Montana--in Libby--don't want 
that.
  So I challenge anyone--anyone--from any State to identify a town 
anywhere else in the country that has these kind of situations. I just 
want to show you right behind me is the vermiculite mine that was 
opened in 1924. By the 1950, cases of previously diagnosed as 
tuberculosis were instead cases of asbestos exposure. The town of Libby 
is located in a valley where the W.R. Grace processed ore from the 
contaminated mine, more than a half million pounds of asbestos a day 
was processed.
  The Libby case is not an isolated case to the exposure within the 
confines of a factory. Instead, asbestos was everywhere. Community 
exposure was rampant. Contaminated properties including everything from 
the Libby community boat dock to the high school--the high school 
track. I want to put up this next picture. This is important. This is 
more than just a family hugging a mine worker after coming home and 
complaining of exposure. This is about asbestos exposure so significant 
that asbestos fibers fell like snow from the sky.
  This is not very far from the mine. It is not very far from their 
loading and processing areas. This is the baseball field in Libby, MT. 
Children played on piles of vermiculite and all around town finding 
humor in taking a match to a fiber which would ignite.
  Houses all over town were insulated with asbestos-contaminated in 
insulation. So my point is this morning, I invite anybody to visit this 
small town in northwest Montana, though I doubt my colleagues will take 
me up on the offer. In the summer, maybe when fishing is pretty good I 
could probably lure some of you out there but this is extremely 
important that other Senators understand the vast difference between 
this town of Montana and various processing plants that were located 
around the country. They were in isolated and enclosed areas.
  This was free to the wind, to the winds of the vermiculite and one 
cannot just sit here and try to draw a mental picture of the impact 
that it had.
  It is extremely important that Senators during this debate understand 
this is a special place, a special circumstance, and special people who 
still live there. I want to thank the chairman of the Judiciary 
Committee. Senator Specter has done marvelous work on this. And to 
tackle this issue, as big as it is, and though we may have some 
disagreements on the size of the trust fund, who pays into the trust 
fund, how much they pay, the formulas, all of this, but I am sort of on 
the other side of this. Mine is the protection of people who have 
seriously been impacted by this thing we call asbestos since 1924.
  Walk through the cemeteries and see those families, and to have 
people come to your town hall meeting short of breath, being suffocated 
by this disease, or any disease related to asbestos.
  I only hope we can continue to work together not only to safeguard 
these Libby provisions, but to improve them as well.
  And again I want to thank the chairman. He is a man of great bravery 
to take this issue on. And it is troubling. It is complex. But I will 
tell you, it is important.
  And I thank the chair, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I thank the distinguished Senator from 
Montana for those important comments. I commend him for his diligence 
in looking after his constituents with special reference to what has 
gone on in Libby, MT. He has outlined the problem, walking through the 
cemeteries, seeing the people who have been smitten since the 1920s. He 
underscores and

[[Page S743]]

emphasizes, in graphic and forceful terms, the problem. I hear him when 
he talks about Libby, MT. We have been addressing it with a special 
provision. We will do more if we possibly can. I have talked to Senator 
Burns off the floor on many occasions and heard the serious problems 
the people of Montana face in Libby. And I have heard the problem that 
these hotspots create around the country. We will do everything we can. 
I compliment the Senator from Montana for his thoughtful statement and 
thank him for his support on the motion to proceed.
  Again, anybody who has listened to Senator Burns, who doesn't think 
we ought to proceed and take up this problem, simply has his or her 
head in the sand. It would be unconscionable to vote against the motion 
to proceed.
  Senator Santorum was in the Chamber a few moments ago. He proposes to 
speak on the Steelers' great victory. I am due at the swearing in of 
the Ambassador to Finland so I will have to leave the floor in a few 
moments.
  (The remarks of Mr. Specter and Mr. Santorum are printed in today's 
Record under ``Morning Business.'')
  Mr. SPECTER. In the absence of any other Senator in the Chamber, let 
me say I again invite any Senator or any constituent who has a problem 
with this bill to come see me. I know Senator Leahy feels the same way. 
With all the outstanding work he has done, and our staffs, we want to 
do what we can to answer all of the problems. As we get ready for the 
vote on the motion to proceed this afternoon, we have certainly 
outlined the seriousness of the issue.
  Since I spoke earlier, I have been reviewing the testimony or the 
argument yesterday of Senator Durbin who spoke about the problem. No 
doubt there is a problem that has to be addressed. That is the issue on 
the motion to proceed. Senator Durbin made a comment that he didn't 
know how the $140 billion was arrived at. It was arrived at by his 
leader, then-Senator Daschle, in collaboration with Senator Frist. He 
said he hadn't been able to find out where the money is coming from. He 
could if he would make an inquiry. We had to subpoena the records, but 
there is transparency. We know where the money is coming from. I 
haven't had a chance to read his statement in full, but I will no doubt 
have more to say about it.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, I have been asked by representatives of 
leadership to ask unanimous consent that the time be charged equally to 
both sides. I am reluctant to make that request in the absence of any 
Senators representing the Democrats so I will not make it, but I would 
ask--I have heard from the leader of the Democrats saying it is OK. So 
I ask unanimous consent that the time under the quorum call be charged 
equally to both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ALLARD. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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