Into Thin Air
Into Thin Air
Disenfranchising Those with Lung Cancer
More than 10,000 people a year die from asbestos disease, 5,000 of them from asbestos-caused lung cancer. It is precisely people like these, those most seriously harmed and dying from asbestos disease, that the Senate leadership has claimed to be helping with its series of asbestos trust fund bills. Few proposals have lived up to that claim, but the current proposal is perhaps the cruelest of all to date.
The Specter/Leahy asbestos bill delivers unusually harsh treatment to victims of asbestos-caused lung cancer. First, the bill establishes criteria that are not recognized by the American Lung Association or the American Thoracic Society requiring that all lung cancer victims also have advanced-stage non-cancer asbestos disease in order to qualify for any level of assistance. But the more insidious disenfranchisement of lung cancer victims becomes apparent only when the exposure criteria in the bill are applied to a sample applicant.
W.R. Grace Company Indicted
on Federal Criminal Charges
This analysis reveals that the Specter/Leahy bill denies any and all compensation to people with confirmed asbestos-caused lung cancer if they entered the workforce after 1978, just four years after the peak of asbestos use in the U.S. of 1.4 billion pounds annually. Like all asbestos victims seeking justice, they will have their cases thrown out of court. But lung cancer victims whose asbestos exposure started after 1978 will never receive a penny from the fund because it will have expired before they can accumulate enough asbestos exposure under the newly minted exposure criteria in the bill. This disenfranchisement would affect even those people with asbestos-caused lung cancer who worked every year from 1978 through the termination of the fund in 2035 in what is characterized euphemistically as a "moderate" exposure environment, defined as working:
"in areas immediate to where asbestos-containing products were being installed, repaired, or removed under circumstances that involved regular airborne emissions of asbestos fibers." (Section 121 (a) 16 (B))
For some lung cancer victims, compensation is even less likely. All individuals with a level VII claim, confirmed asbestos-caused lung cancer with bilateral pleural plaques, will have compensation denied if workplace exposure began after 1974. Lung cancer has a five-year mortality rate of 95 percent.
The reason that all of these lung cancer victims receive nothing is the convoluted exposure criteria in the bill. These criteria declare, without any medical substantiation to support them, that every year of continuous daily exposure to asbestos that occurred after 1976 counts as just one half year, and if that exposure occurred after 1986, it counts only as one tenth of a year, or 36.5 days (Section 121 (a) 16 (E)).
There is no medical or scientific rationale for devaluing a year of work exposure to "regular airborne emissions of asbestos" by 50 percent if that exposure was between 1976 and 1985 and by 90 percent if exposure took place after 1986. Asbestos use peaked in the U.S. in 1974, at 1.4 billion pounds; use in 1976 was clearly over 1 billion pounds, and workplace safety standards recommended by the National Institute of Occupational Safety and Health (NIOSH) were not adopted by the Occupational Safety and Health Administration (OSHA) until 1994 (NIOSH 2002), a full 18 years after the bill begins to devalue a year's worth of work around asbestos.
Nor would full compliance with the OSHA standard mean that workers would not die at an excessively high rate from asbestos-caused lung cancer. The preamble to the OSHA standard itself estimates that one in every 300 workers will develop lung cancer from exposure at the legal limit (OSHA 1986). A more recent assessment concludes that one in every 200 workers will develop lung cancer if they are exposed to a career's worth of asbestos at the OSHA "safe" level.
Compliance with OSHA's permissive standard is spotty. In 1999, asbestos air levels exceeded the far weaker pre-1980 "permissible exposure limit" at 13 percent of construction and 5.6 percent of manufacturing sites monitored (NIOSH 2002). This pre-1980 limit, which was established by the Mine Safety and Health Administration (MSHA) and still applies to mining, is 20 times less protective than the 1994 OSHA standard (0.1f/cc vs. 2 f/cc). Between 19 and 91 percent of all mining sites sampled between 1982 and 1991 exceeded the 1994 OSHA standard. In 1991, 32.4 percent of mining sites sampled exceeded this level.
An example of the Specter/Leahy criteria
The unfairness of the Specter/Leahy criteria are best understood by applying them to a hypothetical applicant to the fund who has lung cancer. For lung cancer level VII (with bilateral pleural disease) a person filing a claim with the trust would need 12 years of weighted exposure (pg 82). If exposure started in 1971, it would take 34 years of continuous exposure to meet the 12-year exposure requirement in the bill. This person, and everyone beginning continuous exposure in 1971 or earlier, would qualify for compensation, assuming all other criteria are met.
For every year past 1971 that the person started working with asbestos under the "moderate exposure" criteria described above, it will take an extra 10 years of occupational exposure to meet the criteria for compensation in the bill. Thus, a person with asbestos-caused lung cancer and pleural plaques who began occupational exposure in 1974 would need 52 years of work exposure (through 2035, or "until" 2036) to meet the 12 year weighted exposure criteria in the bill. After that, the fund will have been terminated.
1974 - 1975 each year counts as a full year - total 2 years
1976 - 1985 each year counts as one half year - total 5 years
1986 - 2035 each year counts as one tenth year - total 5 years
National Institute for Occupational Safety and Health (NIOSH) (2002). "Work-related lung disease surveillance report." Division of Respiratory Disease Studies.
Occupational Safety and Health Administration (OSHA). (1986). "Final Rule: Asbestos." 51 FR 22612. Department of Labor, Occupational Safety and Health Administration. June 20, Federal Register.