[Congressional Record Volume 152, Number 14 (Wednesday, February 8, 2006)]
[Senate]
[Pages S837-S853]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




     FAIRNESS IN ASBESTOS INJURY RESOLUTION ACT OF 2005--Continued

  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I want to spend the next 20 minutes or so 
talking about the asbestos reform legislation that is pending before 
the Senate.
  During the 3 years I have been in the Senate, I have had the great 
honor and privilege of serving under two great chairmen of the Senate 
Judiciary Committee, Chairman Orrin Hatch and Chairman Arlen Specter. 
This bill that has come to the floor is the product of a Herculean 
effort, starting with Senator Hatch as chairman of the committee, and 
now in the able hands of Senator Specter. Along with our ranking 
member, Senator Leahy, they are cosponsors of this bill.
  I am one of 18 members of the Judiciary Committee who voted to get 
the product out of the committee and to the floor of the Senate because 
I believe it is imperative we find a solution to the scandal-ridden 
asbestos litigation crisis facing this Nation. But I was one of seven 
Senators who expressed some strong reservations about the bill in its 
current form, and I think I owe it to my colleagues to explain what we 
were thinking, what at least I was thinking, and what some of those 
reservations are.

[[Page S838]]

  First, to address the problem confronting this country when it comes 
to the asbestos litigation crisis, the RAND Institute has documented 
that out of every dollar that goes into this asbestos litigation 
compensation system, only 42 cents actually goes to the claimant. A 
person who may have mesothelioma--a terrible and fatal cancer that is 
caused by inhalation of asbestos fibers--gets only 42 cents on the 
dollar. The rest of it is consumed in what might sort of innocuously be 
called transaction costs; that is, the costs of a lawyer to pursue that 
claim in court, as well as the lawyer hired by the defendant or 
defendants, as the case may be, together with court costs and other 
associated expenses of litigation.
  Well, obviously, with an override of 58 cents on every dollar paid, 
the transaction costs are steep indeed and cry out for some redress.
  The other problem in the current system is that over the years there 
have been so many claims brought on behalf of individuals who may have 
been exposed to asbestos but who have no current impairment--in fact, 
may never get sick as a result of that exposure--that dozens, indeed, I 
think the number is somewhere in excess of 80 different companies in 
this country, have been bankrupted. What happens when companies get 
bankrupted is people lose their jobs, and retirees lose their pension 
benefits or may perhaps receive only pennies on the dollar for what 
they believe they were entitled to and which they may have expected to 
depend upon during their later years in life.
  Because of the huge volume of claims of people who are not sick and 
who are not impaired but who may have been exposed, that means people 
who have bona fide claims that are clearly traceable to asbestos-
related disease may end up undercompensated as well or even left 
without an adequate remedy.
  In fairness, the people who have made claims and who are not 
presently impaired are kind of in a catch-22 scenario because under our 
laws, and under the laws of most States, you usually have--for example, 
in my State of Texas, you have 2 years--if you have been damaged, but 
you do not yet know the extent of your damage but you have a claim, you 
are required under our laws, under the statute of limitations, to bring 
that claim within 2 years or else you will be forever barred.
  So in all fairness to those people who have brought claims, while 
they have been exposed but may not yet have manifestations of the 
disease, they are in a box with no way out unless we reform the law. 
And, obviously, people who are very sick and may die of asbestos-
related disease, from mesothelioma or some other type of cancer related 
to asbestos, being left with virtually pennies on the dollar, perhaps 
recovered from a bankruptcy trust, is not justice either.
  So this has been an issue that cries out for reform. Some have said--
and I think they are correct--this is not tort reform; this is scandal 
reform. It is an outrage and an injustice that cries out for a 
solution. Indeed, the U.S. Supreme Court, on three different occasions, 
has said this is an issue that is beyond the power of the judiciary to 
solve and asked Congress to come up with a solution to this problem.
  We have worked to try to come up with a solution, but until this week 
no proposal has come so far as to get to the Senate floor to help 
address this problem. So I want to give credit where credit is due to 
Senator Specter, the chairman, and the ranking member, Senator Leahy, 
and all the members of the Judiciary Committee who tried to keep this 
process moving so we could have a bill ultimately that we could send to 
the President, that we could be proud of, and that would address this 
terrible injustice.
  My observation has been that everyone involved in this process has 
been, in good faith, trying to find a solution to fix this situation. 
But it is important to note that while Congress has debated this issue 
and tried to come up with a solution, a number of States, including my 
home State of Texas--notably, Ohio and a handful of other States--have 
stepped in and passed what are commonly called medical criteria bills, 
which, simply stated, allow people who are sick to bring their claims, 
and people who have been exposed but are not currently sick--have no 
impairment--to toll the statute of limitations so that if and when they 
become sick they can bring their claims to court. That seemed to have 
worked pretty well.
  That is not what this bill does. This bill makes a different choice. 
I want to explain in the few minutes that follow the concerns I have 
about this particular bill.
  Here again, Senator Specter has led the way, along with Senator Hatch 
and Senator Leahy and others, to bring us to where we are today. This 
is not easy.

  The bill before the Senate today is vastly better and more improved 
as a result of the work done in the committee and the negotiations and 
the services of people such as Judge Edward Becker, senior judge on the 
Third Circuit Court of Appeals, who has acted as a mediator among the 
stakeholders to come up with a solution.
  My fear is that we would replace the current broken litigation system 
for asbestos injury claims with a complicated, expensive, and 
ultimately unsustainable entitlement program. Let me explain what those 
concerns are in particular.
  Asbestos liability reform, whether it is a trust fund or medical 
criteria legislation such as some States have, whatever the type, 
requires sound medical criteria to filter out fraudulent claims. My 
conviction is that the criteria employed in S. 852, the current 
legislation before us, are faulty and would unnecessarily include 
payments to individuals whose illnesses are not connected to asbestos 
exposure. There are two examples I can think of. One has to do with 
cancer claims. This trust fund would purportedly compensate those with 
cancer claims yet without evidence of asbestos-related disease. 
Obviously, we know this is not designed to be a cancer trust fund; it 
is designed to be an asbestos trust fund. We have to have sound medical 
criteria which would distinguish between cancer and asbestos because if 
we open up the criteria too broadly, chances are the claims are going 
to overwhelm the fund and it will be unsustainable and unsuccessful.
  My second concern, beyond the medical criteria that are not tight 
enough to filter out fraudulent or unrelated claims, is that the $140 
billion, which is the current amount of the trust fund, will not be 
adequate to meet the claims. This admittedly is an area in which there 
is no scientific precision because we are looking out years from now 
and trying to estimate how many people are going to have claims, what 
the mix of those claims is going to be. For example, if you have more 
mesothelioma cases than you think, then it will drain the fund 
precipitously and make it unsustainable.
  Chairman Specter and the Judiciary Committee have heard from a number 
of experts, including the Congressional Budget Office, as well as 
independent estimates, that conclude--I am sorry to say--that the $140 
billion fund will likely be too small to cover the cost and, 
ultimately, will render the fund insolvent. The CBO estimates that the 
trust fund would be presented with claims totaling between $100 and 
$150 billion, but it also projects that total costs would be higher 
because the fund must also cover administrative expenses and any 
financing costs.
  I heard the Democratic whip, Senator Durbin, talk about the financing 
costs associated with the cash-flow requirements of this fund. I share 
some, but not all, of his concerns in that regard. The CBO makes clear 
that ``there is a significant likelihood that the fund's revenues would 
fall short of the amount needed to pay valid claims, debt service, and 
administrative costs.''
  It gets worse, not better. An economic consulting firm by the name of 
Bates White has estimated that the trust fund will generate far more 
claims than the tort system and the existing trust and will result in 
claims perhaps ranging from $300 billion to $695 billion. In other 
words, the trust fund proposed by this legislation would be $140 
billion, but Bates White, in a different analysis, has said they think 
the claims could reach $695 billion, ultimately forcing the fund into 
insolvency and sunsetting the fund within 1 to 3 years of its 
inception.
  Even if you agree with the CBO estimate, it is clear that $140 
billion will at least, under their estimate, not satisfy

[[Page S839]]

the claims made on the fund in administrative costs and the like 
because the CBO cost estimate does not include potential dormant 
claims, possible take-home exposure claims by family members, 
exceptional medical claims, claims from people living near Libby-like 
sites--and I will explain what I mean by that in a moment--as well as 
the impact of allowing CT scans to serve as documentation of pleural 
abnormalities. In other words, the diagnostic test used to determine 
impairment from asbestos-related disease is important to screen out 
people who are impaired from people who are not impaired. All of these 
additional factors that CBO's cost estimate does not take into account 
could add billions of dollars of cost to the trust fund.
  Even more troubling, the CBO's own analysis provides that 1.2 million 
claimants will be deemed to have qualified for medical monitoring. In 
other words, they have been exposed. They are not impaired. Yet under 
the trust fund, they would be monitored to see if they do become 
impaired and thus qualify for a claim under the fund.
  Unfortunately, the CBO misses the fact that if we apply standard 
epidemiological statistics, as many as 200,000 of the 1.2 million 
claimants who qualify for medical monitoring will one day develop 
cancer of some form, and thus the total cost of the fund could be as 
much as $90 billion more than the CBO has estimated.
  Just a footnote here, another problem. I don't mean to have a laundry 
list of criticisms of the bill because, as I said, miraculously we have 
reached this point, but there remains some of the hardest issues we 
need to find solutions to if we are going to solve this scandal that 
otherwise goes by the name of the asbestos litigation crisis.
  This trust fund--here again, I don't know whether all of our 
colleagues have had a chance to look at the bill in the kind of detail 
I am discussing, so that is the reason I wanted to identify these 
concerns, to see if we can find some solution--also provides $600 
million, not to pay claims, not for administrative costs, but for 
additional screening to find new claimants. In other words, it is 
basically a marketing program to go out and try to find individuals who 
might also make a claim to the fund rather than those who have self-
identified or have been referred to the fund.
  I don't have to tell my colleagues; all they have to do is read the 
newspaper or current court cases that are pending. For example, in the 
Southern District of Texas, in front of Judge Janis Jack of Corpus 
Christi, fraudulent medical screenings have produced an enormous number 
of bogus cases that have created a huge burden on the current civil 
justice system. It is beyond me why we would want to go out and shop, 
in essence, or market to try to find more claimants to the fund over 
and above the ones CBO or Bates White or other educated guesses 
estimate will be made against the fund. That is a problem, too.
  My point is that with regard to the number of claims and the demands 
made upon the fund, one of the concerns I have is that if the trust 
fund sunsets in 1 to 3 years the way Bates White says it might do, or 5 
years or 10 years, it forces reversion; that is, claims go back to the 
same broken tort system that brings us here today. So what might happen 
is that companies would have to pay into the fund, but the fund would 
be overwhelmed and thus leave people without a remedy under the fund. 
Then it would revert to the same broken tort system, with all of the 
scandal associated with it, with all of the injustice associated with 
the status quo.

  It is also worth noting--and this ought to caution us--that previous 
attempts to establish national trust funds largely have failed because 
total costs have exceeded those originally predicted. I am thinking 
particularly about the General Accounting Office report on black lung 
and similar funds.
  We know there have been many bankruptcies associated with the current 
asbestos litigation system. Indeed, there is currently about $7.5 
billion of bankruptcy trust funds that would be swept into this bill by 
the Federal Government to help make the $140 billion total proceeds 
available under the fund. These are existing bankruptcy trust funds 
which are currently paying claimants, people who were exposed to 
asbestos fibers and who are sick. But what this fund does--this is part 
of the problem--in an effort to get up to the $140 billion, it 
basically is a Federal confiscation of existing bankruptcy trust funds 
to the order of $7.5 billion. Noted constitutional lawyers, whose names 
are very familiar to the Members of the Senate, have come to me, as I 
know they have others on the committee, and said: How can it be that 
the Federal Government can take $7.5 billion in existing funds that are 
currently paying claims to sick asbestos victims and scoop it into this 
$140 billion fund? So at minimum, we would have to concede there will 
be litigation, and likely successful litigation, challenging the 
constitutionality of this taking by the Federal Government.
  I mentioned earlier that Libby-like issue. Let me explain the 
challenge we have. In Libby, MT, a number of residents were apparently 
exposed to asbestos fibers generated from a W. R. Grace plant located 
in that city. What the Senators from Montana have done in this bill--
and I congratulate them for their advocacy on behalf of their 
constituents--is establish an automatic qualification and a floor of 
$400,000 for any individual who qualifies living within 20 miles of 
that town. Why is that exceptional? Most of the claimants under this 
fund have to be those exposed in the course and scope of their 
employment. The Libby exception is not an occupational exposure but one 
because you happen to be a resident of that town and establishes an 
automatic qualification of a $400,000 floor to anyone who lives within 
20 miles.
  Whatever the merits of that special treatment for Libby, the problem 
we have is that there are as many as 28 other sites in the country, 
including my State of Texas, that may well deserve to be eligible for 
the same or similar special treatment. In other words, if we say people 
who are exposed not occupationally but environmentally because of the 
release of asbestos fibers due to an asbestos company operating in 
their State, if we are going to say Libby, MT, residents are entitled 
to that, I don't know how we cannot, in fairness, say that other 
similarly situated persons are not entitled to the same benefit.
  The challenge, though, the problem that presents is it threatens to 
render the fund insolvent because of the volume of claims that will be 
made under this provision if expanded to include other individuals in 
these 28 other sites. I don't know how this fund can remain solvent 
unless the Libby, MT, provision is removed.
  The challenge the chairman has had is, every time he has someone ask 
for a change in the bill, he risks losing someone else who is on the 
bill and vice versa. So I know he has tried his best to try to balance 
this wobbly entity known as the asbestos trust fund. That creates an 
anomaly and potentially an unfairness, one which would render the trust 
fund asunder.
  The next issue that I have concerns about is this. There is no 
question that some very large companies in this country that have been 
exposed to almost endless asbestos litigation are desperate to bring 
that to a conclusion, to be able to cap off their liability and be able 
to put that behind them and get back to work providing jobs and 
contributing to the engine of the American economy. So there are some 
companies that are desperate to bring this to a conclusion. They are so 
desperate, they are willing to accept this trust fund on the faith, 
hope, and wish that it will be made better through this process--the 
amendment process and in conference.
  But there are others who have come forward and demonstrated to me and 
other Senators that if they are forced to contribute to the trust fund 
under the current allocation system, it exceeds the profit of their 
ongoing business. In other words, if forced by the Federal Government 
to contribute to the trust fund at the current amount created in this 
allocation scheme, we will, in effect, render a number of companies--no 
one knows how many--bankrupt, and they will go out of business; and the 
people they employ, the hard-working Americans they employ, will be out 
of work. Potentially, the pensions of the retirees will be put in 
jeopardy.
  Now, that is not the intention of the trust fund designers. Believe 
me, the

[[Page S840]]

work is ongoing to try to find an equitable allocation scheme. But I 
point out that in trying to effect a cure, we need to make sure the 
cure isn't worse than the underlying disease for many of the companies 
and individuals affected.
  Let me end my remarks on a couple of other final matters that I think 
call out for resolution or improvement in this bill. I have told 
Senator Specter that I want to be part of the solution to this problem; 
I don't want to be an impediment to trying to reach some equitable and 
fair resolution because this scandal should not continue a minute 
longer than it has before we come up with some good solution to this 
terrible problem.
  One of the things I am concerned about in this bill, as well, is that 
the Department of Labor would have to administer this $140 billion 
fund, however it works. Obviously, there are going to have to be a lot 
of new people hired to perform those duties, and I believe it will, in 
fairness, create a new Government bureaucracy, designed to administer 
this program in the Department of Labor.
  I am wary about creating new Government bureaucracies and programs in 
Washington, DC. I am reminded of the quote of former President Ronald 
Reagan. He said: The closest thing to eternal life here on Earth is a 
temporary Government program. This is supposed to be a temporary 
Government program, but I fear that we will create a new and mammoth 
bureaucracy within the Department of Labor that will never go away, 
even after the trust fund has come and gone.
  So I look forward, during the course of the debate, to have the 
opportunity to offer amendments in the form of alternatives, which I 
think may provide a better solution to the problem that we all agree 
exists; and failing that, to offer amendments that will, I hope, 
narrowly address some of the problems presented in the list of issues I 
have spoken about. We need to make sure our good intentions don't 
exacerbate the problem. In a way, I sort of look at this as a 
legislative or congressional Hippocratic oath. Doctors take a 
Hippocratic oath which says: First, do no harm. You want to make sure 
the cure doesn't kill the patient. Indeed, I think we need to take a 
congressional Hippocratic oath that also says: First, do no harm. That 
ought to be our initial focus, to try to find a solution to this very 
difficult, complicated problem.
  I look forward to working with all of my colleagues in good faith, in 
an effort to try to find that solution, even in the form of an 
alternative, if necessary, or, failing that, to come up with some 
targeted amendments which will address some of the concerns, which will 
make sure that sick people get paid and people who are not sick don't 
get paid--to make sure we don't explode the fund by underestimating the 
demands made upon it--and that we have some fairness when it comes to 
the allocation of who pays into the fund and that we proceed to a full 
and final solution to the problem, not a temporary patch that, 
ultimately, leads then back into the ditch in which we currently find 
ourselves, known as the asbestos liability crisis.
  I see my colleague from Alabama, with whom I proudly serve on the 
Judiciary Committee, who is steeped in the details and has been part of 
a Herculean effort to come up with a solution. At this time, I yield 
the floor.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, I urge everybody who has questions about 
this legislation and who did not hear Senator Cornyn's remarks, to get 
a copy and review it. I think he made some terrific points and has gone 
to the heart of the issue and explained a lot of what we are doing.
  Mr. President, the asbestos system, as it is operating today, is 
fraught with misconduct and inefficiencies and unfairness. That is an 
absolute fact. I had been involved, as a private lawyer, many years 
ago--I guess in the late 1970s--with some of these cases. I wish to say 
that I was representing plaintiffs who were injured badly as a result 
of severe asbestos exposure--people inside ships and submarines, 
cutting asbestos with electric saws where the air was so filled with 
asbestos dust that they could hardly breathe. They had to leave the 
submarine to get fresh air, and then go back in to work. They were 
severely damaged and disabled as a result of that. People like the 
plaintiffs I represented deserve compensation, there is no doubt about 
it.
  Since sometime in the 1970s, it has become clear that asbestos is a 
dangerous product and there have been complete changes in how it is 
handled. Asbestos today is almost treated similar to nuclear waste. We 
have had laws to prohibit it altogether. If you see somebody removing 
asbestos from a building, they have masks on, and they do all these 
things with the greatest of care so they are not exposed. But some 
exposure for most people does not result in serious illness, or any 
illness at all. But certain exposure can. So it is a dangerous 
substance, and it creates a lot of stress and concern that a person 
might get sick. For those who are currently sick, they deserve 
compensation. So I say it is rational that some people have filed 
lawsuits to seek recovery.
  But the way these lawsuits are now proceeding through the system 
makes very little sense. We have 300,000 cases pending today. Plaintiff 
lawyers get a chunk of those fees or recoveries on a contingent basis. 
We have criticized them for taking their third or 40 percent, or 
whatever they get out of a recovery--money that on the docket sheet 
might look like the plaintiff got $100,000, but the truth is, right off 
the top comes $30,000 to $40,000 that goes to the attorneys, not to 
mention the cost of buying depositions and the cost of medical 
witnesses who testify at trial. That all comes out before the plaintiff 
gets any money. That is the fact, the way it works. I was never been 
proud of how this system worked in the asbestos cases I saw when I was 
involved with it. It has gotten worse today.
  Groups of lawyers have made hundreds and hundreds of millions of 
dollars out of these cases, and they file thousands of suits. They may 
have 10,000 cases pending. Plaintiffs are grouped, and then are not 
given individual attention. The lead lawyers probably don't even know 
the plaintiffs' names, and probably have paralegals interview them. So 
the system is even worse than when it initially started.
  What else has occurred with the system? We are having people who are 
not sick, as Senator Cornyn noted, recovering money and putting 
companies into bankruptcy; they may never get sick and probably will 
not get sick. Those cases are crowding out the cases of people who are 
sick. As I noted last night, there are widows of mesothelioma victims, 
a deadly cancer that is clearly tied to asbestos. We have those 
widows--some are for the bill and some are against the legislation--
lobbying us. I say to those widows that the sad thing is that your 
husband--or it could be a wife--did not get paid before they died. Why 
can we not create a system in which widows are not out here trying to 
claim the money, but instead we have a system where money goes straight 
to the victims, in their days of illness, before they pass away. Isn't 
that a better system?
  Under the national fund, if a person has mesothelioma and can show an 
exposure to asbestos, they can walk into the Administrator's office--
the office that will receive the claims, with a doctor and a medical 
report that demonstrates that this person has a disease--and if it is 
not contested--and I don't think many mesothelioma cases would be--they 
get a check right there for 50 percent of the $1.1 million. And then 
the other 50 percent has to be paid, as I recall, within 6 months. So 
they get a million dollars while they are alive to take care of their 
last days and their families, instead of having these lawsuits out here 
pending literally for years while people are dying without receiving 
compensation. That is happening today.
  These cases are not going to trial with big verdicts returned. They 
are clogging up the system. They are suing hundreds of defendants per 
plaintiff. Some defendants agreed to pay 250, others 150. The lawyer is 
taking out their fee, and little checks are going off to people who are 
sick. They never know how much they are going to end up with before it 
is over. They started out with 300 defendant companies, I believe, that 
shipped asbestos, that knew asbestos was dangerous and did not put 
warnings out, allowed people to breathe it and injure themselves, 
destroy their health. Those 300 companies

[[Page S841]]

were the only ones originally sued. There was a long battle over that.
  Then there was the decision that said, Well, if you were one of the 
companies that shipped asbestos into Engel's Shipyard, and you cannot 
prove when you shipped it, but if you shipped it in at any time, you 
are jointly and severally liable with everybody else. So plaintiffs 
would not have to prove that they breathed this asbestos--whether it 
was Owens Corning or Johns Manville or anybody else; as long as the 
company shipped it in there, they were liable, too. So that opened 
things up and more cases were filed. And then good lawyers figured out 
a way to add more defendants and find more deep pockets with insurance. 
And from 300 defendants, we now have 8,400 companies that have been 
sued.
  One of them I remember several years ago came to me and told me this 
story. He said: We bought a company, a subsidiary, that for 2 years had 
sold asbestos. They had not sold asbestos for many years before we 
bought them. We bought them, and now we are as liable as any company in 
the country. It is like they put an IV system running through the 
subsidiary right into the heart of another company that never was 
involved in shipping asbestos without warning the recipients. Yet they 
are responsible for funding all this.
  So this is the way this issue has mushroomed. This is the way it has 
really happened. That is why we have thousands of companies willing to 
pay into this fund to get relief.
  I mention the cost of the plaintiff lawyers, but think about these 
companies. They have lawyers, too. They have to pay them, and these are 
some high-paid lawyers. If you are, indeed, being sued for $100 million 
a person, and you have a number of claimants out there, you have to 
hire good lawyers to defend you.
  The RAND Corporation study has concluded that 58 percent of the money 
actually paid out by companies that are defendants did not get to the 
victims but was eaten up in these kinds of costs, like fees for 
plaintiff and defense attorneys. It is really tremendous.
  It started out with some tough litigation. Dickie Scruggs of 
Mississippi, a brilliant lawyer, believes these cases were justified. 
He thought up the cause of action. He battled these cases for years. He 
overcame all the legal defenses and then found the evidence that was 
critical to these cases. Then they found evidence that the company that 
shipped asbestos had known all along this was dangerous and did not 
tell anybody. They had a smoking-gun memorandum. That is how it started 
and went forward.
  Dickie Scruggs, just a few days ago, appeared with Chairman Arlen 
Specter and said: We are beyond that now. These cases ought to be 
settled based on the health of the person. It is not necessary to have 
them all in courtrooms all over America. It should not cost so much. It 
is a whole different ball game now.
  Now the companies are willing to pay money. They are not defending on 
the basis of whether they should pay. They only want to pay a fair 
amount, and they want some certainty in how much they pay. Dickie 
Scruggs thought that was reasonable. He said people who are not sick 
are being paid and the costs are too great.
  It is interesting that the real architect of these cases who 
represented the first plaintiffs and who battled those cases forward 
through all the objections and battles that occurred now says this bill 
is good for the plaintiffs.
  Some say some businesses might pay too much. I don't know that they 
know how much they are going to pay and how much they should pay. We 
are not here as Senators to decide whether companies ought to pay more 
to plaintiffs, or which defendants should pay more, and how much a 
plaintiff really should get, except to say we need to create a system 
that fairly allocates the money to the people who deserve to be 
compensated, and that the money is fairly distributed.
  There is a limited amount of money for asbestos cases. Quite a number 
of companies have gone into bankruptcy, and many more will follow. If 
they go into bankruptcy, they do not have to pay anymore. You can't get 
blood from a turnip. You are not going to be able to recover from 
bankrupt companies. Creating a system that allows the companies a 
chance to survive, to make money and to create wealth that they can 
then pay to people who are sick makes sense. That is what this bill 
tries to do.
  Those are achievable goals. The simple matter is, when you have 
almost 60 percent of the money paid out by these defendant companies 
going to costs, why in the world can't Congress come up with a plan to 
take that 60 percent, not let it be eaten up in costs, and send it 
straight to the victims? We can do that. That is what Senator Specter, 
Senator Hatch, and others have worked for years to accomplish.
  Lester Brickman, a professor of law at Yeshiva University in New 
York, who published an extensive article in the Pepperdine Law Review, 
had this to say about the asbestos litigation:

       The rules of ethics don't apply to asbestos litigation. 
     Everything you see with asbestos is slimy. It's all under the 
     radar screen and it's infected with self-interest and illegal 
     behavior.

  That is a pretty strong statement. I have to tell you, Mr. President, 
there is too much truth in it. It shouldn't be that way. We can clean 
it up. It is time for reform, and that is what we are about today: 
cleaning up what has become a haven for abuse. We need to establish a 
system where real victims, those truly and currently sick from asbestos 
exposure, can receive immediate compensation.
  I know there are some who have concerns about S. 852. You can count 
me among those who believe this is not perfect legislation, that there 
are still some things that have to be done to fix it. However, it does 
represent a good start, and I think with certain amendments on the 
Senate floor and in conference it can be made better. If we work 
together, we can pass a bill that will help solve this current asbestos 
crisis.
  The asbestos litigation affects our economy adversely in a 
significant way. It has had an undeniable impact on jobs and economic 
growth. Instead of spending money on increasing production, expanding 
jobs, research and development, companies have had to spend millions of 
dollars paying claimants and fending off lawsuits.
  The runaway asbestos litigation system has forced many companies into 
bankruptcy. Seventy-seven companies are in bankruptcy or on the verge 
of bankruptcy because they have been the target of asbestos-related 
lawsuits, causing them to lay off 60,000 American workers who have in 
turn lost $200 million in wages. That is not a small matter.
  Companies are not saying we don't have to pay anymore. In fact, they 
are prepared to pay $140 billion. They are saying: Give us certainty so 
we can go to our shareholders and plan our future over the next 30 
years, and then we can provide more money to actually go to the people 
who are sick and less to overhead costs, lawsuits, and lawyers. We will 
be happy; we will take that. That is the opportunity we have today.

  We must be sure that the trust fund we created preserves limited 
resources for the truly sick and does not pay claimants who have no 
real injury or whose sicknesses were not caused by asbestos. We are 
talking hundreds of thousands of people who have had some exposure to 
asbestos. Only those truly sick should be compensated.
  For example, thousands of people have developed colorectal cancer. 
Are the asbestos companies liable for everybody who at one time worked 
for them or was exposed in even a slight way to an asbestos product? 
Are they liable for diseases unlikely to be caused by asbestos? If you 
get skin cancer, are they liable for that, or heart disease or throat 
cancer? Maybe, maybe not; it depends on what the science says.
  Efforts have been made to place into this system liability 
requirements on defendants to pay damages for diseases that may have 
had no connection whatsoever to asbestos. That is the way you kill this 
system. We can't do that. We cannot have this fund, which has a limited 
amount of money--huge as it is--with these thousands of claimants--to 
pay people who are not sick because of asbestos--we have to be generous 
with victims, but we cannot be paying people whose sickness is not 
related to asbestos.
  Again, there is very little evidence, if any, that colorectal cancer 
would be connected to asbestos.
  As I noted, we now have 8,400 companies that are being sued as a part 
of

[[Page S842]]

this process. Many of these have a limited link, if any at all, to 
asbestos but are named in the lawsuit because most of the original 
manufacturers that were sued have gone bankrupt.
  In a statement to the New York City Bar Association, U.S. District 
Judge Jack Weinstein--one of the most famous judges in the country, I 
would add--had this to say about the impact asbestos litigation was 
having on certain companies' ability to stay in business:

       If the acceleration of asbestos lawsuits continues 
     unaddressed, it is not impossible that every company with 
     even a remote connection to asbestos may be driven into 
     bankruptcy.

  These bankruptcies are not only a threat to jobs and the incomes of 
American workers, they threaten retirement savings. The average worker 
at a bankrupt asbestos-related firm with a 401(k) plan suffered $8,300 
in pension losses. Of course, in a number of instances, when a person 
loses his job, he loses his health insurance as well. So this 
litigation is having an impact on real people.
  Judge Weinstein said even a company with a remote connection to 
asbestos could go bankrupt. One could ask, How is this possible? It is 
like I said before; this litigation is like an IV system that goes 
through one person, sucking all the blood out of them, and if they can 
find another person that has blood in them, they will begin to suck it 
out of them, too. It is just that simple. Whoever has the money is who 
they will go to next. Whoever is left standing is the next one this 
litigation turns on and in an attempt to show they are liable.
  We need to bring predictability to this system by creating a national 
trust fund. If we succeed, I believe the companies with asbestos 
liability will then be able to start creating jobs rather than 
eliminating them.
  We have a lot of important issues we are going to confront as we 
hammer out the final language in this legislation. It would be a shame 
on this Congress if somehow, some way, we cannot pass solid legislation 
that takes 60 percent of the money that is now going to overhead and 
lawyer's fees and use that to create better benefits for the plaintiffs 
and provide certainty to the defendants so they can plan their future 
without going bankrupt.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Martinez). The Senator from Montana.
  Mr. BURNS. Mr. President, I don't think we have ever seen anything as 
complicated as the issue before us. We have a vested interest in this 
issue in Libby, MT.
  I ask unanimous consent to proceed as in morning business for 10 
minutes, not thinking I will use all the 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Burns pertaining to the introduction of S. 2256 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. I appreciate the comments of the Senator and his 
leadership on this important issue. It is certainly one important for 
our State and all States.
  I see the Senator from New Mexico. I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, parliamentary inquiry: Is it appropriate 
for the Senator from New Mexico to speak as in morning business?
  The PRESIDING OFFICER. It is.
  Mr. DOMENICI. I yield myself 5 minutes and ask I be permitted to 
speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             LEASEHOLD 181

  Mr. DOMENICI. Mr. President, I rise to speak about a matter that is 
obviously dear to the occupant of the chair because it has to do with 
leasehold 181, off the coast of Florida, Alabama, Louisiana. The bill, 
which was introduced yesterday by Senator Bingaman, myself, Senator 
Talent, and Senator Dorgan, seeks to permit drilling on a portion of 
section 181 within 1 year. The bill protects a 100-mile buffer from the 
coastline of the State of Florida. This bill protects a portion of 181 
that the U.S. Armed Forces indicated they might someday need to perform 
on and use for some military purposes.
  These two exceptions and protections are explicit. That is, how far 
from the coast of Florida and the military protection area. But more 
than this, this bill seeks to protect the American people from the 
rising cost of heating their homes and filling up their cars, and, yes, 
soon, cooling their homes.
  Today, the price of oil is about $65 a barrel, and the price of 
natural gas, while lower than a few months ago, is $8.24 for a million 
Btu's. To put that in perspective, if you go back only 6 years, the 
United States in its totality was spending $50 billion on natural gas. 
Today, we are spending $200 billion, and rising. That means many 
American businesses have already gone broke because they cannot pay for 
the price of natural gas. It means the petrochemical industry in 
America is hanging on, can't grow, and certainly, where they were going 
to build here, they are building elsewhere. The fertilizer industry is 
almost bankrupt, and the manufacturing industry is suffering from many 
things, but they will tell you the highest priority is to get natural 
gas prices under control.
  While we are protecting Florida, we are charged with the 
responsibility of doing what we can to help the American consumer.
  This year, we were very lucky, although Katrina was unlucky. The 
price of natural gas did not stay high, as high as it was going, 
because we had a warm winter. It still is at an enormously high price, 
and I just told you about that. Many Americans had their budgets and 
had disposable income. They woke up when they got their natural gas 
bill and half of their disposable income was gone. Where? To their gas 
bill, because many of them went up from $100 to $200, $200 to $400.
  I must say to Senators, we have been told--the Energy Committee, 
Senator Bingaman and I have been told--that the highest priority for 
natural gas production in the United States--not second, not third, not 
fourth; the highest--is Leasehold 181. It is ready. It is known. They 
have drilled all around it with no damage. We had Katrina and no 
spills. It is 100 miles from Florida, and it will produce a minimum 
approximating 6 trillion cubic feet. What is that? It is one-fourth of 
the entire natural gas use of the United States per year; 10 million 
houses cooled and heated for 6 years. This piece of coast, offshore 
land.
  It seems to me that every year we come into session, we hope we can 
prove to the American people that we can do something. We say: Can't we 
prove that we can move? We are going to move this bill out of committee 
within 3 weeks. If the leader permits, we will bring it to the floor. 
We are going to tell the Senate: You can let us help the American 
people or you can play games; you can take 3 weeks on this bill. It 
doesn't require but 2 or 3 days of debate. If somebody wants to 
filibuster, that is learned quickly. Let us decide whether we want to 
kill the bill or not. At least everybody is going to know they are not 
all so tough, that we have to tell the American people we just can't do 
it, too complicated, too many committees, too much argument. Not so.
  The highest supply production issue for the United States and our 
people today is this little bill. If we do it, we take one high-
priority item off the table and we say: Well, we can do something for a 
change.
  It is bipartisan. My good friend from my State and I have the luxury 
of being the only committee for many years which has two Senators from 
the same State being the lead Republican and the lead Democrat. We are 
going to bring this down here together. It was introduced together. We 
just had a press conference. We say the same things. We both speak 
differently, obviously, but we are going to do it because it brings 
immediate relief to millions.
  That is probably 6 minutes instead of the 5 I reserved. If so, I ask 
consent that it be all right with the Senate.
  I yield the floor.
  Mr. SESSIONS. Mr. President, the Senator from New Mexico should be 
congratulated for his leadership on this issue. He has understood it 
from the beginning. He warned us about the dangers of surging natural 
gas prices for years and years. As a matter of fact, I can remember a 
host of committee hearings in which Alan Greenspan

[[Page S843]]

warned us that we need to do something about natural gas.
  Isn't it true that we have now not only homes being heated and 
businesses being heated and we are using natural gas for fertilizer and 
other things, but electricity is using more natural gas than ever, to 
create our electricity? Is that the Senator's understanding?
  Mr. DOMENICI. That is correct. Not only is that correct, every single 
new powerplant--98 percent of powerplants built in the United States in 
the last 15 years--is natural gas.
  Mr. SESSIONS. Natural gas wells. I live in Mobile, AL, on the gulf 
coast. We have a lot of production right around where we live. We have 
never had any serious spills, to my knowledge, that amounted to real 
damage to the environment since the beginning. They are more safe and 
careful today than they have ever been, and the technology is better 
than it has ever been.
  We are having a debate now about liquefied natural gas and building 
terminals where we send our money off to some foreign country that may 
be hostile to us, and they freeze, liquefy this natural gas at great 
expense, transfer it all the way over the ocean, and then they have to 
heat it up, which causes environmental problems, and then put it in our 
pipelines, and instead of the money staying in our country, it goes 
around the world.
  When we have these huge reserves right off our own shore, doesn't it 
make sense to the Senator that we ought to go forward and produce? I 
see the smile on the Senator's lips. We have been through this before. 
But it is really pretty basic.
  I hope the American people are beginning to understand that we can't 
deny ourselves. Do you know where they get the oil and gas from the 
Persian Gulf? They get it out in the water. If it is an environmental 
issue, it is as bad to get it out of the Persian Gulf, I suppose, as 
out of the Gulf of Mexico, and certainly economically it makes more 
sense, I believe.
  Mr. DOMENICI. Mr. President, I guess this shouldn't get me started 
because I should not be here, I have something else to do, but I guess 
when you are in the Senate, you ought to stay in the Senate.
  But on liquefied natural gas--I might as well make sure the Senate 
hears this--we can't get along without liquefied natural gas for the 
next 25 years, and when you add up demands, unless something really 
breaks--maybe if we had all of the Alaskan plants for natural gas down 
here, but it takes long enough to--I think the statement is we must 
have energy. But we were counting on a lot of it. It is happening, 
however. It is being bought in place by foreign countries.
  Let me tell you that what means. Qatar, a country with huge supplies 
of natural gas, may very well decide that they could sell the whole 
natural gas field to China. There won't be any ships on the sea on 
which to bid. That could happen.
  Right now, natural gas in the form of liquefied natural gas is not 
coming to America in large quantities. We need a lot more ports to get 
ready. But they are paying more for it to go to Spain than what we pay 
to bring it here because there is such a demand.
  While we sit on the natural gas expecting LNG, the LNG is being bid 
up and going elsewhere, and we sit here wondering whether we should 
pass this bill to use our own, which is 100 miles offshore.
  It isn't all so clear where we are going to get this natural gas, 
this beautiful product. It is so good that we burn it right in our 
kitchens. That ought to show you it is pretty safe. It is so good that 
we said no nuclear, no coal; let's just use it to make electricity. We 
decided to do that. That is when we got into this problem. I am not so 
sure we should have done it differently, but that is what happened.
  Mr. BURNS. Mr. President, I ask the Senator from New Mexico to add me 
as a cosponsor of the bill.
  Mr. DOMENICI. Mr. President, I ask unanimous consent that Senator 
Burns be made a cosponsor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DOMENICI. Mr. President, that bill was introduced yesterday. I 
don't have the number, but the clerk has it. Senator Sessions is not on 
that bill.
  Mr. SESSIONS. Mr. President, I would be pleased to be part of it and 
sign onto it. I thank the Senator from New Mexico for his leadership in 
constantly pressing to make sure this Nation does not make a mistake. 
We have made a lot of them in our energy policy. We have been blessed 
to have the Senator there.
  We are now talking in Mobile about a new LNG terminal. Some people 
are concerned about it. We need to be very careful about it. But it 
costs so much more to import liquefied natural gas and then to regasify 
it and ship it around our Nation than to produce it off our own shore. 
And when we produce it off our own shore, the money stays in the United 
States; it doesn't go to these foreign countries.
  I believe, from an economic point of view, we have huge reserves out 
there. I will share, maybe, my thoughts a little later. Maybe Florida 
was legitimately nervous in the early days about these wells and 
whether they would damage their beaches. But this far offshore, 
production has proven now year after year after year to be safe. It is 
not their waters. These deep waters are not Florida waters; they are 
U.S. waters.
  We need to begin in a careful way to examine how we deal with this 
and see if we can't increase our production in the gulf. Alabama has 
found it to be safe. It is somewhat beneficial to our Treasury.
  Mr. DOMENICI. Mr. President, I wish to make two more observations 
while my friend from Alabama is still here, and one in a general way.
  I say to Senator Sessions that we spoke a little bit about the Energy 
Policy Act which we passed last August. It is a phenomenal bill. People 
stopped paying attention to it. But in the proposals the President put 
forth, all but one of those were in the Energy bill. They are waiting 
to be funded. He proposed them, so we are going to fund them. But from 
that day that it was passed until today--on the day it was passed, 
there were zero applications, permit applications for nuclear 
powerplants. Zero. Today, there are 18. It is not in China that they 
want to build 20, or something like that; it is in the U.S.A. because 
of that bill. I am not saying all of them are going to be built, I am 
not saying they have turned a shovel, but clearly the strong indication 
from consortia and individual companies is that because of what we did 
in that bill, it is time to add to the diversity.
  What does that mean? That means had we had those, we wouldn't have a 
natural gas shortage today because little of the gas would have gone 
into powerplants and would have been available for what we are arguing 
about today. We would have been able to tell Florida, although we don't 
think it is the case, You will never have to drill there, but that 
didn't happen. There are many other things that are going to happen 
because of that bill, but we didn't do this one, the offshore, because 
we were told there would be a filibuster on the bill, the big bill, and 
we had to make a decision. It was open and made right here. Everybody 
heard it. So now we have to take our one shot at a time. This is one.
  My last observation would be just in advance--I know the floor is a 
valuable tool for every Senator. They can offer amendments, and they 
can delay things. We are going to work very hard to make this one, 
single, big consumer present all by itself. Please, if you have big 
ideas, we will bring another energy bill, and put it on that.

  I yield the floor.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BURNS. As I listened to the statement of my good friend from 
Texas, I thought I would clear up a few things as the debate on this 
asbestos bill moves forward. I know that Members have some very real 
concerns with the size of this trust fund and who may make claim to it. 
I think the Libby language that we have in the bill now is fair, and I 
will make the case for that because we think it is perceived to be 
inequitable in its treatment.
  The only inequity for Libby residents will occur if their recovery in 
this bill is removed. The medical criteria as it currently stands are 
actually insufficient for Libby victims. So members of this body, in 
particular, my good friend from Texas, is mistaken to conclude that 
they confer such enormous benefits on Libby's residents. That is not

[[Page S844]]

really the case as I illustrated yesterday.
  The bill as it is currently drafted will exclude 40 percent of the 
folks that live in Libby, MT. Now, to remedy that problem, I filed an 
amendment to strengthen the Libby provisions rather than remove them 
entirely. I felt I had to do that.
  While I understand that my colleagues will take issue with specific 
medical criterion in Libby, I fail to see how the exposure in Libby is 
equal to the suffering in any other cities. The exposure to asbestos 
was limited in some of those cities into confined areas. If any 
community exposures existed, they were the result of a factory worker 
exposing his family through his clothing.
  As I explained yesterday the circumstances in Libby are much worse. 
The main thing in Libby, MT, is that the community was exposed. The 
entire community was exposed by the wind from an open pit mine as 
opposed to communities that had enclosed facilities that processed the 
ore from the Libby mines. So we are talking about an entire valley, an 
entire city that was exposed by the wind from an open-pit mine. Not 
only did family members of the mine workers fall ill, but the entire 
town was contaminated.
  Yesterday I showed a picture of a baseball field of little-guy 
baseball, and it was contaminated. In fact, the amounts of asbestos 
meant the asbestos in the playing field were as high as 15 percent in 
some areas. So it has been reported that concentrations as low as .001 
percent in asbestos contamination generates dangerous exposures. So the 
children that were playing on that baseball field in 1978 are now 
experiencing health problems, and we believe they were caused by that 
exposure.
  This is a unique incident. It is a unique area. And we are not 
talking about a structure. And we are not talking about a factory. We 
are talking about an entire community that was exposed to asbestos.
  I think I read yesterday where this Memorial Day they will put up 
over 200 crosses for people who died from asbestos. They have added 20. 
Twenty crosses due to asbestos diseases in the last year. So I think we 
have a unique situation.
  And also, the disease is a little bit different, we are finding now 
from talking to medical people who understand, and pulmonary doctors 
who under stand this asbestos and the related diseases around it.
  So I would ask my colleagues to study this very closely.
  I thank my friend from Alabama, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I see the other Senator from Montana in 
the Chamber. I thank both of them for their strong advocacy on this 
question. Senator Burns is, again, offering an amendment, I believe.
  To carry this further, I will say this to our colleagues. Now is a 
good time for debate. If you have amendments, let's bring them on and 
discuss them. Senator Specter and Senator Leahy, the chairman and 
ranking member of the Judiciary Committee, with bipartisanship, are 
committed to this legislation and trying to make it work. We are 
delighted to hear the debate. We cannot accept everything. But your 
ideas are being listened to. Some will be voted on. We will have a 
better bill when we complete the process.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Mr. President, first of all, I thank my colleague, 
Senator Burns, for helping out in our effort to help the people of 
Libby, MT. In all the years I have been in public service, I am hard 
pressed to think of any situation that has bothered me more, that has 
urged me more to solve, or to help people out, than the people of 
Libby, MT. They have been put out by so much. It is a community that 
has faced hardship in so many ways up in northwestern Montana. The 
sawmills fold up and they go under. The economy there has been 
extremely difficult to sustain. And on top of that, we have this 
problem of asbestos, a particularly vicious form of asbestos in Libby, 
MT, called tremolite.
  I would like to help remind my colleagues what goes on in Libby and 
introduce Libby to those who have not paid much attention to Libby.
  Libby is a very special, very small community up in a remote part of 
Montana, up in northwest Montana. In a valley deep in the Rocky 
Mountains, Libby resides on the Kootenai River.
  And this is not an exaggeration: The people of Libby are struggling. 
They are struggling mightily day in and day out. They have been 
uniquely impacted by asbestos exposure. I do not know of any community 
in the United States that comes close to the level of suffering that 
the people of Libby have suffered on account of asbestos. Once you 
visit Libby, you realize very quickly this is a situation which is very 
different from other asbestos problems in other parts of our country. 
There is no comparison.
  First, just a bit about Libby. It is surrounded by staggering natural 
beauty. It is up near the Cabinet Mountains, next to a divide, the 
Kootenai River. It is a very special part of the world. The wonder of 
the mountains and the beauty of the river, however, contrast 
dramatically to Libby's other major distinction; that is, a community 
suffering from the worst concentration of asbestos poisoning in 
America.
  Many of the people of Libby do not have the luxury now, as a 
consequence of asbestos, of enjoying all of this natural beauty and 
luxury I mentioned. They cannot hike the Cabinets. They cannot go up in 
the mountains to hunt elk. They can no longer scale down the river bank 
of the Kootenai to enjoy their favorite fishing holes.
  Why, might you ask, can't people do that anymore? I will tell you a 
very basic reason. They cannot breathe. They have such difficulty and 
struggle so much with the very basic human activity of breathing--
breathing in, breathing out. They are just out of breath. They just 
cannot breathe.
  So you are asking, why can't the people of Libby breathe? Why are 
they struggling so much to breathe? The simple answer is W.R. Grace. 
Until 1990, a company called W.R. Grace used to mine vermiculite from a 
mountain called Zonolite Mountain, just on the outskirts of there. 
Until the mid-1970s, W.R. Grace processed that vermiculite mined in 
Libby in a nearby mill.
  I remember years ago when I was meeting people up in Libby, going up 
to that mill, I was just stunned with how dusty it was, the conditions 
up there. I assumed it was just a dusty mill, not poisoning the air. If 
it were, people would know about it. But I was wrong. The people of 
Libby made that same assumption. The workers made the same assumption, 
and they were wrong. In fact, the mill was so dusty that workers often 
could not see their hands when they were sweeping with their brooms.
  It is hard for me to find the words to describe the situation. I can 
remember guys coming off the hill, coming out of the mine, getting off 
the bus, and it was just a dust bag, just caked with dust. I never had 
seen anything like it. Mill workers swept dust outside and tried to do 
the best they could. They dumped it. Once they swept the mill, the dust 
and stuff outside, what did they do with it? They just dumped it down 
the mountain. And the mill's ventilation stack spewed dust up into the 
air. The ventilation stack released 5,000 pounds of asbestos every 
day--5,000 pounds of asbestos every day. When the wind blew from the 
east, a deadly white dust would cover the town. It would just cover it 
with dust.
  For decades, 24 hours a day, the dust fell all over Libby. It fell on 
Libby's gardens, fell on the homes. Dust fell on Libby's high school 
track, Libby's playgrounds. Everywhere there was this dust from the 
mine, this asbestos dust.
  Now, some of the vermiculite went downtown to a plant, right next to 
the baseball diamond. I know right where that baseball diamond is: 
right next to the Kootenai River. Vermiculite is a shiny material. You 
heat it and it pops like popcorn. People used to pop vermiculite to 
make building insulation. They called that popped vermiculite Zonolite.
  The plant popped the vermiculite into Zonolite, and batches of 
Zonolite spilled all over the plant, all around the plant.
  What happened? Well, kids played in this stuff. Kids played in the 
Zonolite. Workers at the mine brought back bags of Zonolite to pour in 
their attics as insulation. They put Zonolite in their

[[Page S845]]

walls for insulation. They put Zonolite in their gardens. I guess it 
helped make things grow--they thought. They put vermiculite in road 
beds. Families used vermiculite and ore to build their driveways. They 
used to use this stuff.
  But the layers of rock where people found the vermiculite contained 
harmful asbestos. Nobody knew it at the time. The people did not. The 
people did not. The company did. And the vermiculite outside Libby is 
laced with a particularly dangerous type of asbestos. It is called 
tremolite. This is not ordinary asbestos, which is bad enough. This is 
a very pernicious, special, terrible kind of asbestos called tremolite. 
The usual, more common asbestos is chrysotile asbestos. This is not 
chrysotile asbestos. This is tremolite.
  Why is tremolite so terrible? Why is it even worse? Well, tremolite 
has long fibers that are barbed like fishhooks. These fibers work their 
way into soft lung tissue. These fibers do not come out; like 
fishhooks, they are stuck.
  Now, the Zonolite Mountain now sits peacefully with the damage that 
has already been done. People in Libby are sick--very sick. They suffer 
from asbestos-related disease at a rate 40 to 60 times the national 
average--40 to 60 times the national average. People from Libby suffer 
from asbestos cancer. They suffer from mesothelioma, which is a form of 
asbestos-related cancer. And they suffer that mesothelioma at a rate 
100 times the national average.
  This sickness does not just affect the people who worked in the mill. 
W.R. Grace infected the whole town.
  An article in the journal Environmental Health Perspectives concludes 
that based on the unique nature of vermiculite contamination in Libby, 
along with elevated asbestos concentrations in the air, it would be 
difficult to find Libby residents unexposed. They are all exposed.
  Every day men from the valley went to the mountain to work in the 
mine and the mill. Every day, these men came home covered with the 
fine, deadly white powder. The powder got in their clothes. It got in 
their curtains. It covered their floors.
  I talked to one miner. His name was Les Skramstad. And this is when I 
really got radicalized about this.
  In talking to Les several years ago in his living room, to hear Les, 
a young fellow who is very ill now, he has a hard time breathing. He 
would come off the mine. He would go home to see his wife. His wife 
would embrace him. His children would jump up into his lap. They all 
have asbestos-related disease now, not just Les but Les's wife, his 
children. And the prognosis is not good.
  The fine fibers of tremolite asbestos are very easy to inhale. Miners 
inhaled fibers in the mine. Workers inhaled the fibers in the mill. 
Wives inhaled the fibers when they washed their husband's clothes, and 
children inhaled the fibers when they played on the carpet or hugged 
their fathers.
  The fibers are deadly. They cause respiratory disease. Those fibers 
caused a serious lung disease called asbestosis. Those fibers caused a 
serious form of cancer, mesothelioma, which infects the chest and 
abdominal cavities. Asbestos in Libby is tremolite asbestos. Tremolite 
asbestos is far different from the other chrysotile asbestos, which is 
the predominant cause of asbestos-related diseases. Let me explain the 
difference. Tremolite diseases are highly progressive and also highly 
deceptive. People with initial markers of chrysotile asbestos, the 
usual asbestos disease, have a 25-percent chance of progressive 
illness. Patients with initial markers of tremolite asbestos are more 
than 75 percent likely to develop more destructive diseases.
  Because of the W.R. Grace mine and mill, hundreds of people in Libby 
died from asbestos-related diseases already. Hundreds of current and 
former area residents are now ill. Hundreds of people live in 
discomfort, and hundreds of people live in pain. Seventy percent of 
those affected with tremolite asbestos disease never worked in the 
mine.
  Let me introduce you to some people from Libby. Arthur Bundrock 
worked in the mine for 19 years. He suffered from asbestosis for 21 
years and his suffering was made worse from the knowledge that he 
carried the asbestos dust back home to his family. Arthur's son applied 
for work at W.R. Grace, had to get an x ray before they would hire him. 
The x ray showed he already had asbestosis. Grace never told him the 
results of the screening. The company never told him. Arthur's work in 
the mine affected his whole family. When Arthur died in 1998, six out 
of seven members of his family had asbestosis.
  Then there is Toni Riley. Toni Riley never worked in the mine. But 
similar to many kids in Libby, she played in piles of vermiculite ore 
as a child. These piles were all over the town. Similar to playing in a 
sandbox, kids played in piles of asbestos. Toni Riley was a member of 
the local research and rescue team and an emergency medical technician 
with the Libby volunteer ambulance. She was also a reserve deputy at 
the sheriff's office for 5 years. In 1996, she was diagnosed with 
mesothelioma. Toni died on December 4, 1998. Toni is 1 of the more than 
200 known cases where people from Libby have died as a result of 
asbestos-related disease.
  W.R. Grace may have closed its doors, but the people of Libby will be 
plagued with asbestos for years to come. The company has closed its 
doors, but the people will be plagued probably forever.
  These diseases can take 40 years to appear. Hundreds more will fall 
victim to these diseases in the future. The people of Libby must watch 
their neighbors struggle to tend their gardens, to walk into the cafe. 
They must watch their neighbors struggle to provide a future for their 
children, and they must wonder if they, too, will fall ill. Remember, 
these diseases can take up to 40 years to appear.
  In 1999, the Environmental Protection Agency started to investigate. 
The EPA found tremolite contamination in the air around the nursery. 
They found it near the ballfields. They found it inside homes. Last 
year, we learned that trees near the Grace mine contained asbestos. 
Recently, a University of Montana study revealed another example of the 
horrific level of contamination in Libby. In the new study, asbestos 
fibers were found in the bark of trees growing near Libby Middle 
School.
  Libby is not a rich city. In 2000, the median family income of Libby 
was just under $30,000. That compares with just over $40,000 in the 
whole State of Montana and just over $50,000 in all of America. The 
median family income is much below the national average. Libby is 
working to overcome years of asbestos exposure from W.R. Grace. They 
have been through enough. They did not ask for this lot. That is why I 
have fought to make sure that asbestos bills working through the Senate 
address the needs of the people of Libby, MT. The good people of Libby 
need our help. They are dying up there. The town has risen mightily to 
the challenge it has faced, but they need our help. They deserve our 
help.
  I made a commitment to the people of Libby, and I intend to work 
together with my colleagues to see that commitment honored. Asbestos 
disease has devastated many communities across the country, but 
tremolite asbestos hit Libby hardest of all. Libby is unique. The type 
of asbestos at Libby is unique. The duration of exposure at Libby is 
unique. The manner in which asbestos disease manifests itself in Libby 
is unique, and the communitywide exposure in Libby was unique. That is 
why the tailored solution that the committee has proposed makes sense.
  I urge my colleagues to support the Libby provisions in the asbestos 
bill and help us right this terrible wrong. Help these hundreds of 
suffering people to get health care and help save the life of this 
town.
  There are not many things that I have experienced in the last, 
roughly, 30 years I have been in public service that equal the tragedy 
which is Libby, a tragedy caused by W.R. Grace and asbestos, a 
particularly pernicious form of asbestos in Libby, tremolite asbestos, 
which is so harmful to the community. Libby is struggling mightily. 
Libby wants to put this chapter behind them. The people of Libby are 
doing all they can. They don't complain. It is a wonderful feature of 
westerners, generally, and especially of the people of Libby, MT. They 
are not crybabies. They don't whine. But they want justice. They 
deserve justice.
  We must take advantage of this unique opportunity we have in the 
legislation before us to make sure that the people of Libby get their 
fair due.

[[Page S846]]

The provisions in this bill help assure that compensation is given to 
the people of Libby who are affected by asbestos so they can pay the 
medical bills, so they can somehow, some way, get back to normal lives, 
knowing all along that for many of them, for the indefinite future, 
they are still going to have a terrible infliction and difficulty 
breathing in and breathing out.
  I implore my colleagues, please listen to the people of Libby. 
Please, in your heart, help the people of Libby, MT. That is the very 
least they deserve.
  I yield the floor.
  The PRESIDING OFFICER (Mr. THUNE). The Senator from Florida.
  Mr. MARTINEZ. Mr. President, I ask unanimous consent to speak for 5 
minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Martinez are printed in today's Record under 
``Morning Business.'')
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, under arrangements worked out between the 
leaders of the two parties, we will be open for amendments tomorrow. 
Senator Leahy and I wrote to all Senators back on January 24, urging 
Senators to let us know what amendments they intended to offer so that 
we could schedule the business of the Senate. I renew that request at 
this time. We have a bill where, as previously announced, we are open 
for modification. During the some 36 negotiating sessions which Judge 
Becker and I have presided over during the course of the past 2\1/2\ 
years, we have made many modifications. We accepted many amendments in 
committee. Some were voted upon and defeated. But we are interested in 
making this the best bill we can.
  We have carried the offer beyond amendments. If any companies are 
having special problems, we are interested to hear of the problems to 
see if we can find a way to accommodate them. We are dealing here with 
an enormously complex subject and we have limited time. In order to 
manage the bills, in order to conserve the time of the Senate, it is 
our request that Members bring forward to us amendments they want to 
have offered, which they intend to offer, with suggestions for time 
limits so we can proceed to manage the bill.
  There has been extensive debate on the bill. The Washington Post 
reported today about the success of moving forward with the motion to 
proceed and, as I say, tomorrow we will be proceeding with the 
amendment process. The Post noted, as they put it, referring to me, 
that I had ``a bit of an obsession with the passage of this bill.'' I 
think that is an erroneous statement. I don't have a bit of an 
obsession; I have a total obsession with the passage of this bill. I 
say that because I have been working on this bill for the entire time I 
have been in the Senate.
  Shortly after I was elected in 1980, Senator Gary Hart came to me and 
was with a constituent, Johns Manville, and said there is a terrible 
asbestos problem. I have been a party to efforts over the course of the 
past two and one-half decades-plus to try to find an answer. It has 
been extremely elusive. Finally, Senator Hatch came up with the idea of 
a trust fund. When we passed the bill out of committee during the 108th 
Congress in July 2003, I then enlisted the aid of a senior Federal 
judge, Edward Becker, who had been chief judge of the Third Circuit, 
and who is very knowledgeable on asbestos matters. Judge Becker had 
written the opinion which was upheld by the Supreme Court of the United 
States, which said you could not use class actions on asbestos. That 
might have been an answer on consolidation class action status to 
handle the issue in the courts. The Supreme Court of the United States 
said that mode of procedure was not suitable for asbestos. Then the 
Supreme Court of the United States issued a challenge to the Congress 
to provide a legislative solution. That challenge has been issued by 
the Supreme Court on some four occasions, telling us that it was our 
business to come up with a solution. Judge Becker agreed to mediate 
and, as I say, we have had some 36 meetings in my conference room, 
attended by anywhere from 20 to 60 people. Stakeholders were 
principally involved, and that is defined as labor, AFL-CIO, which was 
represented ably at those meetings; we invited the trial lawyers and 
they attended the meetings, even though we knew there would be 
opposition from them because, realistically, it impacted their 
livelihoods; we had the manufacturers and we had the insurers.
  Last week, we saw come forward a very prominent plaintiffs' lawyer in 
the asbestos field, Dickie Scruggs, Esq., of Mississippi. He is also 
Senator Lott's brother-in-law. Senator Lott put the two of us in touch 
and we talked about the matter. He was one of the originators, if not 
the originator, of the litigation involving asbestos. From what he has 
seen over the years, he came to the conclusion that it was not a good 
idea to keep these asbestos cases in the courts; that a better idea was 
to have the trust fund, and he came in and made public statements. I 
believe he may even be on a commercial. I don't have a chance to watch 
too much television, except for C-SPAN. But he pointed out that the 
victims are simply not being compensated. When we have had a lot of 
talk on the Senate floor about special interests, this is one interest 
group which is not a special interest; it is a general interest, and 
that general interest is the large group of victims who are suffering 
from deadly diseases--mesothelioma and lung cancer and other ailments 
from exposure to asbestos--who are not being compensated. It is their 
interest we are seeking to take care of.
  When their companies go bankrupt, they don't have anybody to sue and 
that is why the trust fund has been created--a trust fund where the 
figure was established jointly by Senator Frist on behalf of the 
Republicans and then-Senator Daschle on behalf of the Democrats at $140 
billion. !1The interested parties, the manufacturers and insurers, 
agreed to put up that money. The fund had started out with 
substantially less, but it was calculated that that would be an amount 
realistically calculated to take care of the problem. It is very hard 
when making projections to know with certainty what is going to happen. 
The Congressional Budget Office has made an exhaustive study and 
concluded it would cost in the range of $120 billion to $135 billion. 
They outlined one contingency which might be a little higher than $150 
billion, but they said it was impossible to make the calculation, as 
they put it, ``with great certainty.'' !1Well, you cannot function in 
all cases with great certainty, but these projections are realistically 
calculated to do the job. If we are wrong, and when you talk about 
thousands of cases projected over decades, if our projections are not 
accurate, the claimants have the right to go back to court so that they 
are no worse off than they would be at the present time. They are 
limited to either Federal or State courts--but they cannot judge shop 
for special counties anywhere in the country, which is the practice 
today. Madison County, IL, was singled out and some counties in some 
other States. They have to go to the State courts where they live or 
where they worked. So we have a realistic plan to take care of this 
issue. !1But if we can have a better bill, we are very anxious to have 
that better bill. That is why we have invited our colleagues to come 
forward with any amendments they may have. The three Senators from the 
other side of the aisle who have spoken in opposition to the bill have 
conceded the very grave, difficult problem. They say this bill is not 
right, but they don't deny the transparency of how we have worked, and 
they don't deny the evidence that has gone into it or the comprehensive 
analysis. I have said I believe this is the most complicated piece of 
legislation that has ever confronted a legislative body. That is a very 
grandiose, sweeping statement, but I believe it to be true. I repeat 
that I challenge anybody who knows of some legislative activity that is 
more complicated than the one at hand. There have been extensive 
hearings, extensive negotiations, extensive analyses, extensive 
amendments, and we are still open for the amendment process. !1It is my 
hope we will do what the Democratic leader said yesterday, and that is 
go to the amendments and take them up, and that we will not face 
additional procedural challenges. If we do, we are prepared. There has 
been some talk in the cloakrooms and hallways about challenging them on 
a budget point of order, and we are prepared for that. The underlying 
merits

[[Page S847]]

are that there is no realistic budget problem, because there is no 
Federal money involved here. We have made the bill airtight that the 
Federal Government cannot be involved. It is all private contributions. 
If the plan does not succeed, we have alternative ways of dealing with 
the issue, but not to come back to the Federal Government. There are 
three possibilities of points of order. One is you cannot have 
legislation before there is a budget resolution. But on that situation, 
consulting with the experts on procedure, we can have the date of 
October 1 in the next fiscal year to solve that. !1There is an issue 
about an allocation that was made at the discretion of the chairman of 
the Budget Committee, and we believe that will be accomplished with 
that allocation being released by the chairman. All of this is a bit 
presumptive, but I think that is how it will work out.
  There is a third concern, which is that there not be more than $5 
billion spent in any 10-year period between 1960 and about 40 years 
beyond that. So we will see what eventuates. We are working to cap 
expenditures so that we stay within that $5 billion limit.
  Mr. President, I ask unanimous consent that three additional letters 
from the International Association of Heat and Frost Insulators and 
Asbestos Workers, the United Automobile Workers, and the International 
Union of Painters and Allied Trades in support of S. 852, the Fairness 
in Asbestos Injury Resolution Act of 2005, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         International Association of Heat & Frost Insulators & 
           Asbestos Workers,
                                     Lanham, MD, February 6, 2006.
       Dear Senator, we strongly support the courageous and bi-
     partisan work of Senator Arlen Specter (R.) and Senator 
     Patrick Leahy (D.), co-sponsors of the Fairness in Asbestos 
     Injury Resolution (FAIR) Act of 2005 (S. 852) which comes to 
     the Senate Floor this week.
       We support the Bill as presently drafted. We ask that you 
     support the Bill as well.
       Our U.S. Supreme Court has held that federal legislation is 
     necessary to solve the asbestos compensation crisis--and we 
     agree. Currently, only 42 cents of every dollar spent in this 
     broken system goes to victims, their widows and kids.
       I recently wrote our membership across the country to 
     advise them of our support for this Bill, and to urge them to 
     contact you in support of S. 852. I advised our membership 
     that this Bill is not perfect. But nothing ever is when 
     problems of this magnitude are addressed.
       We believe S. 852 offers the best hope of providing fair 
     and equitable compensation on a national basis for those who 
     have suffered, or will suffer from the devastating effects of 
     asbestos exposure in decades to come.
       We urge you to reject amendments of special interest groups 
     on either side of the issue that would change the core 
     provisions of the Bill.
       Such amendments can only be hostile to the interests of 
     fundamental fairness and equity. We have promised our 
     membership that we would fight vigorously to oppose any 
     change that would make this Bill unfair or inequitable.
           Very truly yours,
                                                   James A. Grogan
     General President.
                                  ____

         International Association of Heat and Frost Insulators & 
           Asbestos Workers,
                                     Lanham, MD, January 31, 2006.
     To: Members of the International Association Heat and Frost 
         Insulators and Asbestos Workers.

       Dear Brothers and Sisters: The Fairness in Asbestos Injury 
     Resolution Act of 2005 (Asbestos Bill S. 852) is scheduled to 
     be brought to the floor of the United States Senate in early 
     February of this year.
       Bi-Partisan Co-Sponsors of S. 852: Senator Arlen Specter 
     (R.) and Senator Patrick Leahy (D.): Nobody has worked harder 
     than Senate Judiciary Chairman Arlen Specter (R.) of 
     Pennsylvania and Ranking Minority Member Senator Patrick 
     Leahy (D.) of Vermont in trying to get a fair and equitable 
     and bi-partisan Bill that helps those who have suffered the 
     devastating effects of exposure to asbestos. These two 
     courageous Senators have worked tirelessly during the last 
     three years--to craft changes to the Bill after listening to 
     reasonable suggestions from Labor, Business and Insurance 
     negotiators.
       Special interest groups on both sides of the issue have 
     tried to de-rail their good work. But Senators Specter and 
     Leahy have stood tall in search of an equitable legislative 
     solution.
       This Office Has Actively Participated in the Negotiating 
     Process of this Bill Over the Last Three Years: Your 
     International has been actively involved in extended and 
     complicated negotiations to bring about this legislative is 
     necessary to solve the asbestos compensation crisis--and we 
     agree.
       Let us begin by stating that this Bill is not perfect. 
     Nothing ever is. For the last 10-20 years the current 
     asbestos compensation system has produced inequitable and 
     unfair results. Tens of Billions of dollars have gone to 
     people who are not sick. This is wrong. The current system is 
     broken, notwithstanding what special interest groups may 
     claim. We believe this Bill offers the best hope of providing 
     equitable compensation while expediting the compensation and 
     review process on a national basis, regardless of where you 
     live, or who your attorney might be.
       Over 300,000 Pending or Current Asbestos Claims Cry out for 
     a Fair Legislative Solution from Congress: Currently it is 
     estimated that there are more than 300,000 pending asbestos-
     related claims. In a recent study by RAND, it was determined 
     that only $0.42 (42 cents) of every dollar spent on 
     litigation is awarded to the actual victims, their widows and 
     kids. A majority of the funds is paid to transaction costs, 
     including lawyers' fees for corporations and claimants.
       $140,000,000,000 ($140 Billion) Trust Fund For Victims of 
     Asbestos Induced Mesothelioma, Lung Cancer and Asbestosis 
     under a No-Fault System with Set Awards Based on Severity of 
     Disease: This Bill would establish a $140 Billion Trust Fund 
     to compensate victims who are truly sick from asbestos 
     exposure under a no-fault compensation system administered by 
     the Department of Labor. Objective medical criteria that will 
     rule in asbestos induced disease, and will rule out disease 
     not caused by asbestos exposure has been negotiated and 
     approved by us and medical experts we have retained. This 
     legislation will offer the following expedited settlements:
       Mesothelioma: $1,100,000 per case.
       Lung Cancer with Asbestosis: $600,000-975,000 per case.
       Lung Cancer with Asbestos Pleural Markers: $300,000-725,000 
     per case.
       Disabling Asbestosis (not cancerous): $850,000 per case.
       Asbestosis with Some Impairment: $100,000-400,000 per case.
       Attorneys' fees have been limited to 5% under the 
     legislation. It is to be expected that lawyers who have 
     received tens of millions of dollars in asbestos fees might 
     voice some objection to the Bill. Insurance companies who 
     will have to pay hundreds of millions of dollars into the 
     Trust are likewise objecting to this courageous attempt by 
     Senators Specter and Leahy to solve the asbestos compensation 
     crisis.
       The Pipefitters, Painters and United Auto Workers Have 
     Joined With Us: The leadership of the Plumbers and 
     Pipefitters (the UA), the Painters (IUPAT) and the United 
     Auto Workers (UAW), have joined with us in supporting this 
     Asbestos Bill S. 852. We believe the leadership of other 
     trade unions will come to join us in the weeks ahead in 
     support of this Bill.
       Funding: We are aware of those who, in good faith, question 
     whether $140,000,000,000 ($140 Billion) will be sufficient to 
     fund the Trust to compensate all American victims of asbestos 
     induced cancer and asbestosis. We share their good faith 
     concern.
       But there have been too many bankruptcies as a result of 
     the current asbestos litigation crisis. If funding mandated 
     under the Bill proves insufficient, the Bill provides that 
     individuals may return to the court system and pursue a 
     lawsuit in their State or Federal Court before a jury of 
     their peers. This was a hard fought and fair compromise.
       Let me close by saying that this International Union 
     remains deeply committed to supporting a meaningful, 
     comprehensive solution to our national asbestos litigation 
     crisis. Be assured if we become aware of changes or 
     amendments to this Bill that will be to the detriment of 
     workers and their families, we will fight them, and will not 
     hesitate to change our position if needed.
       We urge you to contact your Senators to gain their full 
     support for this legislation. Attached is a complete listing 
     of Senators and their contact information for your 
     convenience.
       With kind regards, we remain,
           Fraternally yours,
     James A. Grogan,
       General President.
     Terry Lynch,
       Political director.
     James P. McCourt,
       General Secretary-Treasurer.
                                  ____

         International Union, United Automobile, Aerospace & 
           Agricultural Implement Workers of America,
                                 Washington, DC, February 3, 2006.
       Dear Senator: Next week the Senate is scheduled to take up 
     the Fairness in Asbestos Injury Resolution (FAIR) Act of 2005 
     (S. 852), sponsored by Senators Specter and Leahy. The UAW 
     strongly supports this legislation. We urge you to support 
     this critically important legislation, and to support cloture 
     both on the motion to proceed and on the bill itself.
       The UAW supports S. 852 because we are firmly convinced it 
     would be far superior to the current tort system in 
     compensating the victims of asbestos-related diseases. Under 
     the existing tort system, many victims receive little or no 
     compensation because those responsible for the asbestos 
     exposure are bankrupt, immune from liability or can't

[[Page S848]]

     be identified. Even when victims do receive some award, the 
     litigation takes far too long, and the amounts are highly 
     unpredictable. Far too much money is wasted on attorney fees 
     and other litigation costs, or dispersed to individuals who 
     are not impaired.
       The Specter-Leahy bill would solve these problems by 
     establishing a $140 billion federal trust fund to compensate 
     the victims of asbestos-related diseases through a stream-
     lined, no-fault administrative system. This system will 
     provide much speedier compensation to victims according to a 
     predictable schedule of payments for specified disease levels 
     that focuses compensation on those who have the most serious 
     impairments. It will also guarantee that victims can receive 
     adequate compensation, regardless of whether those 
     responsible for the asbestos exposure are bankrupt or 
     otherwise immune from liability.
       The UAW strongly supports the provision in the Specter-
     Leahy bill that does not permit any subrogation against 
     worker compensation or health care payments received by 
     asbestos victims. We believe this provision is essential to 
     ensure that victims receive adequate compensation, and do not 
     have their awards largely offset by other payments. We 
     strongly urge you to oppose any amendment that would 
     undermine victims' compensation by allowing subrogation.
       The UAW also urges you to reject any other amendments that 
     would reduce or restrict eligibility for compensation for the 
     victims of asbestos-related diseases. This includes any 
     amendments that would strike medical monitoring or eliminate 
     Level VI awards.
       The UAW supports the provisions in S. 852 that require 
     broad sections of the business and insurance industries to 
     make contributions to finance the $140 billion federal trust 
     fund. We believe this broad-based, predictable financing 
     mechanism is vastly preferable to the current tort system, 
     which has already driven many companies into bankruptcy, and 
     is threatening the economic health of other companies that 
     used products containing asbestos, including the major auto 
     manufacturers. Continuation of the existing tort system will 
     inevitably lead to more bankruptcies, resulting in more lost 
     jobs and wage and benefit cut backs for workers and retirees. 
     However, to ensure that the financing mechanism in S. 852 
     remains equitable and workable, the UAW believes it is 
     essential that the Senate reject any amendments that would 
     severely narrow or cap the financing base and jeopardize the 
     guarantee that $140 billion will be made available to 
     compensate asbestos victims.
       The UAW recognizes that a number of specific concerns have 
     been raised by other labor organizations about various 
     provisions in S. 852. We are continuing to work for 
     improvements in the legislation, and are hopeful that 
     Senators Specter and Leahy will largely address these 
     concerns in a manager's amendment.
       However, the UAW does not agree with those who have taken 
     exception to the 5 percent cap on attorney fees for monetary 
     daimants. This cap ensures that asbestos victims will be 
     adequately compensated, and not see their awards severely 
     reduced by exorbitant attorney fees. This cap will not impede 
     the ability of claimants to get adequate legal 
     representation. Because S. 852 establishes a non-adversarial, 
     no-fault administrative system, the difficulties and costs 
     involved in bringing asbestos claims will be greatly reduced. 
     Indeed, much of the work can be done by paralegals. We also 
     believe that labor unions and other groups can help provide 
     free or lower cost representation for asbestos victims by 
     hiring staff attorneys and other professionals to process the 
     claims under the no-fault administrative system. Through such 
     mechanisms, asbestos victims can receive competent 
     representation with little or no attorney fees being deducted 
     from their awards.
       Finally, the UAW recognizes that questions have been raised 
     about the projections for asbestos claims and the solvency of 
     the trust fund. We would note that most stakeholders agreed 
     to $140 billion in financing early last year. Although all of 
     the projections are subject to some element of uncertainty, 
     the UAW believes that the $140 billion in financing is 
     sufficient to enable the trust fund to compensate asbestos 
     victims for a lengthy period of time. It is also important to 
     remember that S. 852 provides for reversion of asbestos 
     claims to the tort system in the event the federal trust fund 
     should ever have insufficient funds to pay all claims. While 
     we hope these reversion provisions will never be triggered, 
     they do provide assurance that victims will always have some 
     recourse for seeking compensation.
       It is easy for critics to point out shortcomings in S. 852. 
     The UAW submits, however, that it is abundantly clear the 
     asbestos compensation system established by the Specter-Leahy 
     bill would be far preferable to the existing tort system. It 
     would do a much better job of providing prompt, equitable 
     compensation to asbestos victims. And it would finance this 
     compensation through a rationale system that does not lead to 
     bankruptcies that threaten the jobs, wages and benefits of 
     thousands of workers.
       For all of these reasons, the UAW strongly supports the 
     FAIR Act (S. 852). We urge you to vote for this legislation, 
     and to support efforts to invoke cloture on the motion to 
     proceed and on the bill itself.
       Thank you for considering our views on this vital issue.
           Sincerely,
                                                     Alan Reuther,
     Legislative Director.
                                  ____

         International Union of Painters and Allied Trades, AFL-
           CIO, CLC,
                                 Washington, DC, February 7, 2006.
       Dear Senator: The Senate is now considering the Fairness in 
     Asbestos Injury Resolution (FAIR) Act of 2005 (S. 852), 
     sponsored by Senators Specter and Leahy. The International 
     Union of Painters and Allied Trades (IUPAT) strongly supports 
     this legislation and, as it moves forward, we urge you to 
     support cloture on S. 852 on both the motion to proceed and 
     the bill itself.
       The IUPAT believes that S. 852 offers the best hope of 
     providing fair and equitable compensation on a national basis 
     for those who have suffered, or will suffer, from the 
     devastating effects of asbestos exposure in decades to come. 
     We believe that S. 852 and the establishment of a $140 
     billion federal trust fund to compensate the victims of 
     asbestos-related diseases through a stream-lined, no-fault 
     administrative system is a vast improvement over the current 
     tort system that all too often is unfair to victims of 
     asbestos exposure. Under the current tort system, many 
     victims receive little or no compensation because those 
     responsible for the asbestos exposure are bankrupt, immune 
     from liability or cannot be identified. If a victim is 
     fortunate enough to secure an award, the litigation can drag 
     on for years, the award amounts are highly unpredictable, and 
     far too much money is wasted on attorney fees, other 
     litigation costs, and individuals who are not impaired.
       Furthermore, while this important legislation is considered 
     on the Senate floor, we urge you to reject any amendments 
     that would weaken core provisions of the bill. Namely, 
     agreements reached on the issues of insurance subrogation, 
     medical monitoring, CT scans, statute of limitations, medical 
     criteria, awards values, $140 billion in guaranteed private 
     funding, enforcement provisions for contributors, 
     transparency of fund contributors and a reversion to the 
     current tort system should the fund become insolvent. Should 
     any amendments be adopted on the Senate floor that would 
     weaken any of these core provisions, we will be forced to 
     withdraw our support for S. 852. We also look forward to 
     ongoing efforts included in a manager's amendment and during 
     Senate floor debate that would, in our view, positively 
     address outstanding concerns with regard to start-up and 
     sunset provisions as well as individuals suffering from both 
     asbestos and silica related diseases.
       In dealing with a highly complex and emotional issue, S. 
     852 reflects years of negotiations and compromises that will 
     undoubtedly allow critics to point out various 
     ``shortcomings'' in this bill. The IUPAT recognizes that this 
     bill is not perfect but perhaps it represents the last best 
     chance to provide prompt, equitable compensation to asbestos 
     victims and is undoubtedly a vast improvement over the 
     existing tort system. The U.S. Supreme Court has held that 
     federal legislation is necessary to solve the current 
     asbestos compensation crisis, and we agree. We believe that 
     S. 852 deserves your consideration and ultimate support, and 
     for that reason, the IUPAT urges you to support cloture on 
     both the motion to proceed and the bill itself.
       Thank you for your time and attention to this critical 
     issue.
           Sincerely,
                                                James A. Williams,
                                                General President.

  Mr. SPECTER. Mr. President, I see the distinguished Senator from West 
Virginia, the senior Member of this body, the former President pro 
tempore, former chairman of the Appropriations Committee. He has held 
every title there is around here. We consider Senator Byrd's longevity 
and stature as phenomenal. He was in Congress when Harry Truman was 
President, so he has served with a lot of Presidents. Senator Byrd 
makes a key distinction between serving with and serving under. He says 
serving with, and I think he is right. And if you are dealing with 
Senator Byrd, of course, he is right.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Mr. President, I shall quote Alexander Pope in saying to my 
distinguished friend, Senator Specter:

       Thou art my guide, philosopher, and friend.

  I thank the distinguished Senator.
  Mr. President, I ask unanimous consent to proceed for not to exceed 3 
minutes as in morning business for the purpose of submitting a 
resolution.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from West Virginia is recognized.
  Mr. BYRD. I thank the Chair.
  (The remarks of Mr. Byrd pertaining to the submission of S. Res. 370 
are located in today's Record under ``Submission of Concurrent and 
Senate Resolutions.'')
  The PRESIDING OFFICER. The Senator from Pennsylvania.

[[Page S849]]

  Mr. SPECTER. Mr. President, it is about a quarter of 5, so we still 
have a fair amount of time left on today's calendar. There is no 
Senator in the Chamber, except you and me, Mr. President. So if there 
are any of our colleagues who want to speak on the asbestos bill, now 
would be a good time to come over and speak.
  There is a certain tempo about this Chamber. When there are a lot of 
Senators who want time, there is very limited time, fighting for the 
last extension of time, unanimous consent for 2 more minutes here and a 
little more there. Now is the time for anybody who wants to speak to 
come to the Senate Chamber.
  I might comment that we all have a lot of other things to do, beyond 
any question. I have been spending a lot of my time meeting with 
Senators in their offices talking about the bill and also working on 
the issue of electronic surveillance, which is very heavy on the 
Judiciary Committee calendar. I am now about to go to a meeting on 
immigration, but I will be available if the action on the floor heats 
up.
  Again, I urge any of my colleagues who want to speak, now is a good 
time. Again, I urge my colleagues to follow up on the request Senator 
Leahy and I made back on January 25: If you have amendments, let us 
know so we can manage this bill in an efficient way.
  In the absence of any Senator on the floor seeking recognition, I 
suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DURBIN. 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. DURBIN. Mr. President, pending before the Senate is S. 852, which 
is a bill that has been written to address what has become a scourge in 
America: asbestos-related illness and death.
  We understand that as early as 1934, some of the companies that were 
making products out of asbestos came to realize there was a danger, 
that some of the employees working around this asbestos ended up 
developing lung problems and some of them were fatal.
  Rather than protect the employees or disclose the danger, some of 
these companies did nothing, said nothing. In fact, there is ample 
evidence that they covered it up. They didn't want their employees to 
know the dangerous situation they were in. They didn't want to end up 
with liability for their employees' illness and death, and they didn't 
want to lose their profitability. So this secret was kept for a long 
time, from the 1930s onward.
  Through World War II, when men and women serving this country were 
busy building the ships and other vehicles necessary for our troops, 
they were exposed to asbestos in many different forms.
  Asbestos became a very common element that was used in construction 
and a lot of different products, from brake linings to home insulation. 
It was considered to be a valuable resource that was fireproof and 
light in weight. It was somewhat revolutionary. But during this entire 
period of time, the development of asbestos product, the asbestos 
itself, and the fibers that were floating in the air, breathed in by 
workers and bystanders and innocent people, were creating mini-
timebombs in the lungs of the people who were exposed. They didn't know 
it. They didn't sign up for it. They were not warned. They only learned 
much later in life that they had some exposure and it ended up killing 
them.
  I wish the story of asbestos had started and ended long ago, but it 
continues to this day. People still turn up with this disease, 
mesothelioma, the most fatal form of asbestos exposure, similar to lung 
cancer, but much more virulent in terms of its devastation on the human 
body.
  The persons diagnosed with mesothelioma have limited time to live. 
Some of them go through harrowing, extraordinary surgical procedures to 
buy the possibility of a few more months of life. It can strike anybody 
at any time, young and old alike, men and women alike. It can strike 
someone in your family, Mr. President. It can strike a friend. 
Asbestosis, which is a form of it, is a disease which limits your 
activities and limits your lifespan. Mesothelioma is a killer.
  So hundreds of thousands of Americans have come to learn, because of 
exposure to this product, that they are sick and facing huge medical 
bills and the prospect of illnesses of great duration or death, and 
they ask who is responsible.
  Occasionally, they will find an employer that used asbestos. In some 
cases, they will find a product they purchased that ended up creating 
asbestos exposure, and they try to seek compensation in court.
  What they are doing is very common in America. People who are guilty 
of wrongdoing are held accountable in court. Drunken drivers are held 
accountable in court. People who sell defective products are held 
accountable in court. People who strike other people and cause injury 
are held accountable in court.
  So over the years these hundreds of thousands, maybe millions, of 
people have asked for their day in court, asked for a judge or jury to 
decide whether they are entitled to compensation for medical bills, for 
lost wages, for the family they will leave behind if they are going to 
die.
  It is not unusual. These are the types of lawsuits filed every day in 
America, and we trust our system. The system says that ultimately a 
judge and a jury will decide what is fair and what is right. A judge 
and a jury of the peers of the person who is in the courtroom will 
decide if compensation is something that should be given. In many 
cases, it is clear, and large verdicts are given; in some cases, the 
answers are no.
  So over the years, as this asbestos exposure has become better known, 
many of the companies that were deeply involved in making profits with 
asbestos have faced huge lawsuits from numerous people who have been 
injured. Some of these companies, because of the lawsuits and other 
circumstances, have gone out of business.
  Johns Manville was a big name 30 years ago in America. Now it is a 
trust fund created to pay asbestos victims. Johns Manville made its 
fortune, in some part, by using asbestos. But by using asbestos and 
creating asbestos products, they endangered and harmed a lot of people. 
Courts across America said: Johns Manville, you are responsible; you 
have to pay. That has happened over and over.
  There are many corporations that wonder if they, too, will face many 
lawsuits. Some already have; others have not. The victims keep coming 
because so many people were affected by this product. And because of 
the concern of some businesses as to their exposure and liability, they 
started coming to Congress over 20 years ago, saying we have to close 
the courthouse door, we can't let these people come into the courtrooms 
anymore because they keep winning. They are winning because no one 
willingly exposed themselves to asbestos. They were innocent victims 
and their lives were changed dramatically.
  So these businesses came to Congress and said: You have to take these 
cases out of the courtroom; you have to create some other way to deal 
with it.
  We have been talking about it for a long time here on Capitol Hill. 
Finally, this week, S. 852 has come to the Senate floor in an attempt 
to create a system that will replace the courtroom in America. This 
bill creates a trust fund that is supposed to pay the victims.
  Think about these victims for a moment. There are some, when you 
think about them, you might be surprised to know why they died. One of 
them we talked about earlier today was a great colleague of mine from 
the State of Minnesota, Bruce Vento. What a terrific guy. I believe he 
was formerly mayor of St. Paul, MN. He represented St. Paul in the 
House of Representatives. Bruce was a terrific fellow, an outdoorsman, 
physically fit. I would see him in the House gym every morning. His 
locker was down from mine.
  Then came the day when they diagnosed him with mesothelioma, and that 
was, sadly, a death sentence. At some point in his life, something he 
had done had exposed him to asbestos. It was a tough situation. His 
family tried to face it, get the best of medical care, but it was 
hopeless. As a consequence, Bruce passed away.

  Here is someone certainly the older people in the audience will 
recognize, actor Steve McQueen. He died in 1980

[[Page S850]]

from mesothelioma. Some exposure at some point in his life led to this 
deadly disease. This man who was so handsome, daring, and courageous in 
all the movies could not fight back when he was struck with 
mesothelioma.
  Recently, singer Warren Zevon--I recall when he did his last CD. It 
was a big hit. He made that CD realizing it was the last one he would 
ever record. At some point in his life, he was exposed to asbestos. He 
has died.
  Admiral Elmo Zumwalt, most people remember him, his service to 
America in the U.S. Navy during Vietnam. He is a well-known figure, 
spokesman. He, too, was exposed to asbestos at some point in his life 
and died of mesothelioma.
  These are some of the big names who died of mesothelioma, but there 
are others.
  Patricia Corona is a mesothelioma victim. I wish to tell you a little 
bit about her story.
  Patricia, 72 years old, was diagnosed with malignant mesothelioma in 
the spring of 2001. Her exposure began when she was a young woman in 
the course of her employment as a sales manager at various automotive 
dealerships. They used asbestos brake linings, pads, and clutches. She 
was a sales manager. She frequently walked around the service area. 
Unknowingly, she was exposing herself to deadly asbestos fibers.
  Mrs. Corona and her husband Carl, shown in this picture, have two 
children. After leaving the automotive dealership, Mrs. Corona decided 
to stay at home with her kids. While at home, she led an active life. 
She remodeled her entire house by adding on, painting, putting up 
drywall, putting in new floors, among other things, just the kind of 
ambitious, energetic, and talented woman you want to have in your own 
home. Unbeknownst to her, many of the products she used in home 
construction contained asbestos. Again she was exposed, unknowingly, to 
these deadly asbestos fibers.
  When Carl and Patricia's kids were grown up, Mrs. Corona went back to 
work as a sales manager, and eventually bought her own custard stand. 
After quitting her sales manager job and selling the custard stand, she 
stayed home to take care of her handicapped brother.
  While taking care of her brother, she did some small remodeling. In 
the spring of 2001, Mrs. Corona's active life came to a screeching 
halt. She was stricken with shortness of breath and extreme chest 
pains. She was diagnosed with mesothelioma in May 2001. Mrs. Corona's 
life, along with her husband's, changed dramatically due to the effects 
of the disease.
  Mrs. Corona is obviously restricted in her activities and realizes 
that in a short period of time, she will succumb to this disease. 
Patricia Corona of Glen Ellyn, IL, another asbestos victim.
  This is businessman John Rackow. John is from Lake Zurich, IL, grew 
up in Chicago and moved to the suburbs. His father Ron owned a plastics 
factory, and Jack helped him run it. He married and raised three kids. 
Along the way, he worked for a lot of different businesses. He worked 
in the property development business. He was athletic and active, but 
he recently noticed when he went out running, he would become short of 
breath. He was an avid golfer. Jack also noticed his golf game wasn't 
what it used to be. He went to see a doctor. Some routine tests 
revealed a mass in his body. When the biopsy was done, the doctor 
diagnosed him with mesothelioma.
  Jack didn't believe it. He went to all kinds of specialists. He took 
medication to manage the pain. He continued to play golf and even 
entered a golf tournament. However, after a few days, he was flat on 
his back in the hospital. He became weaker by the day, and in less than 
2 weeks from the time he entered the hospital, he passed away at the 
age of 64. Jack Rackow is survived by his children and grandchildren. 
He is another asbestos victim.
  The last one I will talk about from Illinois is policeman Donald 
Brozych from Tinley Park. He studied for the priesthood. He eventually 
decided to become a police officer. While he was in school, he worked 
in construction. He was handy at home and worked on his own car.
  After he retired, Don and his wife enjoyed traveling and spending 
time with their friends, but he found himself worn out all the time. 
During a physical exam, the doctors found some abnormalities, did some 
tests, and diagnosed him with malignant mesothelioma.
  After diagnosis, Don has gone through numerous treatments--
chemotherapy, extensive surgery. He even went into an experimental 
program. He lost his hair. As of the time of this writing, he has been 
in treatment for over 2 years. He says each day is a blessing and he 
doesn't know what to expect in the future. He and his wife Donna pray 
for a future.
  When was he exposed? He doesn't know. He looks back at his life and 
tries to figure out was it while he was working on construction, trying 
to earn his way through school? Was it while he was working on his car, 
doing home repairs? There were so many common experiences he was 
involved in, never knowing he was exposed to asbestos.
  I tell you these stories because people such as those I just 
described have cases pending in courts across America today. They are 
people whose lives have been shortened and whose lives have been 
changed dramatically because of exposure to asbestos. They want to know 
if they can find the party responsible for their illness, whether that 
party will pay to their family the cost of medical bills and do 
something to keep their family together when they are gone. It is not 
an unreasonable request, and it is a request which many times leads to 
a jury verdict or a judge finding, yes, they are entitled to recover.
  This bill that we have before us, S. 852, is a bill which will close 
the courthouse doors to every one of those people. If they don't have a 
case being argued before a judge in trial, when this bill is signed 
their case will be closed. No matter how long they have worked on it, 
no matter how much effort they put into bringing together medical 
bills, bringing together all the evidence of where they worked and how 
they could have been exposed--despite all that effort, it is over.
  Where do they turn? They will turn to this trust fund, a trust fund 
that has been created in this bill. How much money are we going to have 
in this trust fund to take care of all these asbestos victims for the 
next 50 years? The amount, according to the chairman and the sponsor of 
the bill, is $140 billion.
  Repeatedly today and on previous occasions, Chairman Specter has been 
asked: Where did you come up with the number $140 billion? By what 
method did you calculate the number of potential victims, the amount of 
compensation, to come up with this number of $140 billion? Without 
exception, the chairman of the committee and lead sponsor of the bill, 
Senator Specter, has said he cannot explain that calculation. He cannot 
tell us where $140 billion came from. At best, he says, it was a figure 
that he heard from Senator Frist and Senator Daschle a year or two ago. 
That doesn't sound like a very valid starting point to establish the 
amount of money you need in a trust fund to take care of some of the 
victims that we have talked about.
  To close the courthouse door to Donald Borzych and his family, and to 
say to them you cannot pursue your lawsuit, you must turn to this trust 
fund, the starting point should be that the trust fund has enough money 
to take care of the victims. But, sadly, there is no way of 
establishing that.
  In fact, today Senator Kent Conrad, who is a colleague of mine from 
the State of North Dakota and is the Democratic spokesman on the Senate 
Budget Committee, made a presentation to our caucus lunch. By best 
estimate, $140 billion is grossly inadequate, totally unfair in terms 
of what it will cover in the future. They have turned to a variety of 
different groups and said: What would it really cost? The Congressional 
Budget Office, outside consulting groups--each and every one of them 
says $140 billion is not enough.
  Senator Specter was asked yesterday: What happens if this trust fund 
runs out of money? What if claims of people like Donald Borzych, 
Patricia Corona, are still out there, or people just like them, when 
the fund runs out of money? Senator Specter was very candid. He said we 
will just have to cut back on the amount we have to pay the victims. 
Think of that for a moment. Facing deadly mesothelioma or asbestosis, 
losing your day in court for just

[[Page S851]]

compensation for your injuries, you turn to a trust fund that fails you 
when you need it, and you receive a token amount for having given up 
your life, having given up the quality of your life, having given up 
all that time with your family.
  Over the last year or two I frequently have met with the families of 
these mesothelioma asbestos disease cases. Some of them are still 
heartbroken because in many cases that father and that husband was 
taken from them in a short period of time. In other cases they fought 
valiantly, with great pain and sacrifice, to try to beat this disease--
and they failed. Just last week, in a corridor upstairs, a family came 
to see me. A great young little fellow there who looked like he was 
about 8 years old--he had a white shirt on and a bow tie--he was coming 
to the U.S. Capitol. He talked about losing his grandfather. He said he 
was glad he lived long enough to at least know him, but he lost him to 
asbestos.
  I thought to myself at that moment: If you are going to take that 
family out of court, if you are going to close the courthouse door to 
their effort to recover at least for the medical expenses and the 
injuries that have been suffered, shouldn't you put them in a system 
that will work, a system that you can say with some confidence will 
compensate them?
  We cannot say this about this bill--$140 billion--and no one can come 
to this floor and explain how that $140 billion is going to be 
adequate. It turns out that as soon as you close the courthouse door, 
if this bill passes, and you open up this trust fund, there will be a 
flood of people rushing to it. We know that. Some of them are on their 
last leg, literally, trying to get some compensation. So will there be 
enough money in the trust fund to get started? The answer is no, not 
nearly enough.
  What is the trust fund going to do? It is going to turn around and 
borrow enough money to start to pay them over an extended period of 
time. And as the trust fund borrows money, it has to pay interest for 
the money it borrows. The best estimates are that out of $140 billion, 
more than a third of it is going to be paid in interest because of 
borrowing to start the trust fund in its earliest years. So there will 
not even be $100 billion to deal with all of these cases.
  Where will the money come from, $140 billion? That is another good 
story. I yielded today several times to Senator Specter. We talked 
about this. It is still not clear what happened, but some outside 
group--whether a consulting group or private corporation, I don't 
know--was called on to figure out how you create $140 billion in a 
trust fund. How do you turn to businesses and insurance companies and 
have them pay that much money? What standards do you use? How many 
companies are affected? Which companies will be responsible? Which will 
not be?
  All the time we were considering this bill in committee, many of us 
were asking: How did you come up with $140 billion, and who is going to 
pay it? We never could get an answer. In May of last year I wrote a 
letter to the chairman and I asked: Can you tell us the answers to 
those questions? This was 8 months ago. I never received a reply.
  Over time, the chairman said he would provide the information, then 
announced that he had to issue a subpoena to get the information to 
explain his own bill--subpoena. Today he acknowledged it. They 
subpoenaed the information--not from a Government agency but from some 
private business, private corporation that was writing this bill, or at 
least writing the means by which they would fund the bill. They 
subpoenaed the information. So, obviously, we believed that in the 
interest of a real public debate that information should be public. But 
it is not. Somehow or another it has been characterized and classified 
as confidential information so that any person--the family of Donald 
Borzych, for example--who wants to know how this trust fund will ever 
be funded can't even see this. It is a secret list, a secret list of 
the companies that are going to fund the trust fund to $140 billion.

  Is this how we write laws in America? Do we go to private companies 
to write the laws? And then, when you ask them to give you the 
information as the basis for the law, you have to subpoena it? Demand 
it from them? Is that what the American people expect? I don't think 
so.
  I think they expect people, public officials and our staff, to put 
their best efforts into writing a bill that is not written by special 
interest groups, is not written by private companies. In this case, 
this bill clearly was, in many respects.
  There are big winners in this bill. I wish I could go through the 
bill with some certainty and tell you what is in it, but I cannot. 
Standing here today, facing the prospects of voting on the bill 
tomorrow, I cannot tell you what we will be voting on. A lot of people 
think Senators do not even try. The fact is, we were given a bill, this 
bill here, S. 852. That is the one that was passed around here. It is 
on everybody's desk. But it turns out this is not the bill at all. 
Listen to what was printed today in Congress Daily, which is a 
publication on Capitol Hill:

       Senate Judiciary Chairman Specter is drafting a managers' 
     amendment to the asbestos litigation bill with more than 40 
     new provisions in hopes of garnering enough votes to pass the 
     legislation. Senator Specter said in a news conference, 
     ``There is so much of this bill that is a work in progress.''

  I can tell you, that means that neither this Senator nor, frankly, 
any Senator other than perhaps the chairman, has a clue what we will be 
voting on tomorrow. While the fate and lives of millions of Americans 
who have been exposed to asbestos hang in the balance, we are being 
asked to vote for a bill that will be changed so dramatically in just a 
few hours that no one knows what is in it. No one knows what is in it. 
This is what gives Congress a bad name--for us to be moving on a bill 
of this importance and this magnitude without knowledge as to what is 
included.
  What is interesting is that the White House usually comments on these 
bills. They kind of send us a statement of administration policy, as to 
whether they support a bill or oppose it. What I find interesting is we 
received an interesting statement from the White House on the 
administration's approach to it. I might say, before I read it, that 
they could not possibly know what is in this bill because no one else 
knows. It is going to change overnight. A managers' amendment will 
bring 40 new provisions in the bill. But nevertheless, the 
administration, the Executive Office of the President, February 8, 
2006, Statement of Administration Policy on S. 852:

       The administration supports Senate passage of S. 852.

  He goes on to say asbestos related litigation has clogged up courts, 
deprived those with injuries of meaningful remedies, costing tens of 
thousands of jobs, and so forth.
  Then they come down to the second paragraph in this very brief 
statement of policy in which they say:

       Although the administration has serious concerns about 
     certain provisions of the bill, the administration looks 
     forward to working with Congress in order to strengthen and 
     improve this important legislation before it is presented to 
     the President for his signature.

  Serious concerns--well, they should have serious concerns because 
they have not seen the bill. Forty new provisions are going to be added 
tonight that no one in the White House could possibly have read before 
they gave this reservation of an endorsement.
  Here we are in a situation with a trust fund in an amount that cannot 
be explained, coming from companies that are on a secret list that 
cannot be disclosed, as part of a bill that does not exist.
  If you were out there with a member of your family exposed to 
asbestos, I think you would have justifiable concerns that what the 
Senate is about to do is nothing short of a disaster--a disaster for so 
many victims across the United States.
  Several things ought to be said about the problems that we face with 
this bill. I could talk to you about the difficulties in the bill. One 
of them relates to Libby, MT. Libby, MT, could have been ground zero 
for asbestos contamination. W.R. Grace & Company was mining asbestos 
and their workers were being exposed to dangers on a daily basis. This 
company is now gone, but the lawsuits and the injuries and the deaths 
continue from Libby, MT.
  I can recall when Peter Grace, the head of W.R. Grace, was brought to 
Washington during the Reagan administration to tell us how to run the 
Government. Peter Grace was the head of a

[[Page S852]]

commission to end waste and fraud and abuse in Government.
  It turns out that Peter Grace's company, W.R. Grace, had been guilty 
of fraud on its workers for decades, concealing the dangers of 
asbestos. Part of this bill says we ought to give these Libby, MT, 
workers good treatment. I support it. I think it is a good thing to do.
  But only Libby, MT. It turns out across the United States of America 
there are smaller examples of exactly the same thing in State after 
State. There are over 25 different sites around America--some in my own 
home State of Illinois, some in Texas, some in Louisiana, some in New 
York--that are just like Libby, MT. But when the chairman wrote the 
bill, special consideration was only given to one place in America--one 
place. Why? Why would you single out one place in America to give 
special treatment under the bill? Sadly, that is exactly what happened. 
And because it happened, we are going to be facing an amendment, which 
I believe Senator Graham will offer, to make sure that there is fair 
treatment for many others who are going to be involved.
  I hope the Senate will support it. As I said, I am not against Libby, 
MT, receiving their fair share. But who were the winners and losers 
when it gets right down to it? The list is pretty interesting.
  I talked earlier about U.S. Gypsum, a company based in Illinois. They 
have been sued by lots of people exposed to asbestos from their 
products. U.S. Gypsum made an announcement last week as follows:

       We believe that we have about $4 billion in damages that we 
     have to pay to victims of asbestos exposure from our 
     products.

  Then they went on to say that they were going to pay it, unless this 
bill passes. If this bill passes, U.S. Gypsum will be required to pay 
into the trust fund $900 million.
  Think about that for a moment. One company benefits to the tune of 
$3.1 billion--U.S. Gypsum--because of this bill.
  When it comes to the question about who wants this bill, you can bet 
that company wants this bill.
  Honeywell is another company--estimated future asbestos payments, 
$2.75 billion.
  How much will they pay into this trust fund? Somewhere in the range 
of $300 million or $400 million, about 14 percent or 15 percent of what 
they would otherwise pay in court. So now Honeywell wants this bill.
  Dow Chemical, estimated future asbestos payments up to $2.2 billion. 
What is the amount of money they will pay into the asbestos trust fund? 
Somewhere in the range of $300 million. So they are going to do quite 
well.
  But there are other companies that will be forced to pay into this 
trust fund with exactly the opposite results.
  A.W. Chester, a company that has an estimated future asbestos payment 
in the court system, zero; never been sued, never paid. They will have 
to pay annually $16.5 million into this trust fund; never been sued, 
never paid a penny.
  They have said, quite frankly--this company has been around for a 
long time--they are going out of business.
  The same thing is true with Hopeman Brothers, no exposure; $16.5 
million a year into the trust fund.
  National Service Industries, estimated future asbestos payments, $11 
million. They have to pay $16.5 million a year into this trust fund.
  Is it any wonder that many of us have asked to come up with a list of 
companies that are going to be winning and losing with this asbestos 
bill? There are going to be some big, huge winners, and they have been 
working night and day to get this passed.
  There was a study released by Public Citizens Congress Watch in May 
2005, entitled, ``Federal Asbestos Legislation: The Winners Are.''
  It looked at lobbying efforts behind this bill. They have been going 
for a long time.
  I mentioned, in an earlier statement, that over 20 years ago people 
were talking about legislation. There has been a real intensity in that 
lobbying effort over the last several years.
  This public citizen organization concludes the big winners will be an 
unknown number of Fortune 500 companies and at least 10 asbestos makers 
who have filed for bankruptcy.
  It concludes: Some of the Nation's largest and savviest investment 
firms have positioned themselves to score big if the bill passes.
  Everybody following this debate--especially Americans fed up with the 
way Washington works against the interests of the mainstream and for 
the interests of Wall Street--I hope they will go to the Public Citizen 
Web site, www.Citizen.org, and read it for yourselves. You can read 
their report and analysis of the lobbying effort. And you will find the 
money which has been spent--estimates by some are as high as $140 
million--in lobbying to get this bill passed.
  It sounds like a huge sum of money, until you look at one company 
that could win $3.1 billion if this bill passes. It means a lot to 
them. You can understand why that company hired 40 lobbyists to come 
and beg us to vote for this bill.
  But I don't worry so much about the companies. I want them to stay in 
business, if they can. I worry most about the victims. I worry about a 
system that would not pay those victims.
  Is this the best we can do in America? Is this what fairness has come 
to? This bill is called the FAIR Act. Sadly, I think it is unfair. It 
is unfair to the hundreds of thousands of people who, through no fault 
of their own, have been exposed.
  Luckily, we have a lot of supporters who have come and talked to us 
about their support for this legislation opposition. They include many 
businesses that will be shortchanged, as I mentioned earlier, which 
include some insurance companies that feel this is fundamentally 
unfair. They include asbestos victims groups united to oppose this 
legislation and a score of major labor unions across America 
representing workers who may have been exposed and may need their day 
in court.

  I am afraid that when you add up this lobbying effort that I have in 
my hand against the $140 million to pass this legislation, this poor 
group just didn't have the firepower.
  That is why this legislation is on the floor today and why it will be 
considered very soon.
  Once again, we are going to say to America, We don't trust the courts 
in America, we don't trust the judge, we don't trust the juries. We 
trust the special interest groups pushing legislation that takes the 
power away from the individual to have their day in court, to have 
their neighbors decide what they are entitled to.
  Some who want to put their trust in that operation should pause and 
reflect.
  This is the same gang who came up with the Medicare prescription drug 
benefit program that has become an unsalvageable fiasco across America; 
again, that program driven by the pharmaceutical companies, this 
legislation driven by a handful of corporations that will do extremely 
well.
  I am going to close by saying that I can't think of a more important 
bill to be considered since I have been in Congress. I can't think of a 
bill that is going to have more impact on ordinary people.
  It is unfortunate that special interest groups will dominate this 
debate. Some people say: Aren't there special interest groups on both 
sides? I will concede that point; business groups on both sides, trial 
lawyers on one side, major corporations on the other side, unions on 
one side. This is a clash of the special interest titans.
  That is what this bill is.
  The obvious question is: Why are we doing this? If you ask the 
American people to pick any city in America, whether it is in Nevada or 
Illinois, you pick it, go on the street and ask: What is the first bill 
the Senate should take up this year? My guess is that many of them 
would say: I hope it is ethics, with that culture of corruption in 
Washington. You had better clean that mess up before you do anything 
else. Someone else may say: After I sat down with my mother and tried 
to do that prescription drug form, I hope you will change that. Someone 
else might say: I hope you will do something about the cost of health 
insurance. That is a real issue facing businesses, families, and 
individuals.
  In my part of the world, they would say: Have you seen your heating 
bill at your home lately? It is double, Senator, if you didn't notice. 
What are you doing about energy in this country?

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  Some workers who come by my office ask: What are you going to do to 
protect pensions which we have worked a lifetime for?
  There is a long list of things we could do not driven by special 
interest groups. No. The first item on the agenda for the Senate is the 
asbestos bill, the clash of the special interest titans.
  That is where we are going to spend our time.
  When it is all over, I am afraid those who couldn't afford lobbyists, 
couldn't afford the people who stand outside the corridors with 
signals, hand signals, with a wink and a nod on how we are supposed to 
vote, those are the ones who are going to be the losers.
  I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Ensign). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. DeMint). Without objection, it is so 
ordered.

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