Oakland Tribune, Ian Hoffman
Published May 10, 2005
Americans who never worked with asbestos but have been breathing its toxic fibers could lose valuable legal rights and have a tough time getting medical bills paid out of a $140 billion asbestos trust fund headed for Senate debate today, legal experts say.
As Congress considers eliminating asbestos litigation and replacing it with a federal compensation program for victims, lawmakers have concentrated on ailing asbestos workers but left in limbo thousands of people who have non-occupational or environmental exposures to asbestos.
Federal health and environmental officials are still gauging the magnitude of non-occupational asbestos illness in the nation, a task complicated by the 20 to 50 years it takes for disease to appear. But the exposures are undeniable.
In California, developers have bulldozed and blasted through natural veins of asbestos to build subdivisions, parks and schools. Thousands of people live close to former W.R. Grace plants in Santa Ana and the East Bay's Newark that processed almost 10,000 train shipments of vermiculite contaminated by asbestos and sent toxic fibers into the surrounding neighborhoods.
Asbestos lawyers, law professors and environmentalists say the asbestos trust fund legislation - Congress' largest experiment with tort reform yet - stands a good chance of shortchanging those people.
"It seems to me this legislation should be of great concern to environmentally exposed plaintiffs," said Jonathan Turley, a public-interest law professor at George Washington University law school.
"They're clearly marginalized," said Richard Wiles, senior vice president of the Environmental Working Group, which opposes the trust fund bill. "They have a very long row to hoe to get compensated."
Last week, people in the Sacramento suburb of El Dorado Hills learned from the EPA that they and their children have been breathing potentially dangerous levels of asbestos stirred up by construction. Many of the fibers are tremolite asbestos, a leading culprit blamed for 200 cancer deaths and 2,000 additional cases of lung abnormalities in Libby, Mont.
"It's the same for people in El Dorado," Wiles said. "These people are virtually excluded by where they live, and that's not fair."
Sen. Dianne Feinstein staffers say people who breathe asbestos outside the workplace can file for compensation under a catch-all provision in the bill for "exceptional medical claims" that don't meet the occupational-exposure rules laid out in the rest of the bill.
It is unclear how the administrator of the federal trust fund or a judge might view those claims. If they look to the bill and to lawmakers' debate on its language, they will find that Congress discussed environmental asbestos victims yet provided for compensation to people in Libby and no one else.
Feinstein, a California Democrat and co-sponsor of the bill, contends that people sickened by exposure to asbestos in the environment were included simply by expanding the definition of asbestos in the bill to include an especially lethal form of asbestos found in Northern California.
"This ensures that if California residents get sick from exposure to amphibole asbestos they would be covered under the bill," she said in a prepared statement.
But in writing the bill, lawmakers concerned themselves almost exclusively with workplace asbestos exposures. To be eligible to make a claim, for example, asbestos victims must document their history of occupational exposure and then fit into a series of medical criteria, all of which require some level of occupational exposure.
Lawmakers made explicit exceptions in only two cases: family members of asbestos workers who were subject to "take-home exposures" to asbestos dust and fiber and residents of Libby, Mont., where W.R. Grace knowingly had vermiculite miners digging into veins of amphibole asbestos, considered 10 to hundreds of times more carcinogenic than the most common industrial asbestos.
Millions of tons of vermiculite contaminated by asbestos fibers were shipped by rail and truck to 200 locations nationwide, most of it to 40 sites where workers used ovens to expand the vermiculite and repackaged it as attic insulation, a garden-soil additive or coating for building materials. According to investigations by the Agency for Toxic Substances and Disease Registry, workers at some of those plants are dying of asbestos-related disease. ?
Smokestacks at those plants billowed a fine mist of invisible asbestos fibers over blocks of homes, and at unfenced sites children played in vermiculite waste piles full of deadly fibers.
They breathed the same asbestos as people in Libby, but if the trust fund bill passes as written, their eligibility for compensation would be dubious, and they would have no legal recourse.
"All of the medical criteria require some occupational exposure, and these people won't have it," said Wiles of the Environmental Working Group.
"If you live in Libby and you have asbestos disease, you are guaranteed to receive no less than $400,000. We think that's good," he said. "If you are exposed to the exact same chemical, literally the same asbestos, but somewhere else in the country, you get nothing, or you will have a very difficult time."
"Congress clearly knew there were environmentally exposed individuals yet chose not to deal with them," said George Washington University's Turley. Workplace claims are easier to document, he said, "so the statute deals ? with the easiest cases while leaving the tougher cases dangerously undefined."
The bill's only clear nod to environmental asbestos concerns comes in a Feinstein amendment setting aside
$40 million for federal agencies to map asbestos deposits in California, study the health of older California residents and provide EPA matching grants to state and local governments for asbestos cleanup.
"We thought this was a good course to pursue to prevent future illnesses that could come," said Feinstein spokesman Howard Gantman.
