Why FAIR is foul 

Asbestos law protects Libby, not rest of U.S.

The headline in Kalispell’s Daily InterLake read “Good news for Libby.” An appropriate sub-headline might have read, “Bad news for most everyone else.”

Asbestos victims in Libby (more than 200 of whom have already died from exposure to deadly fibers from W.R. Grace’s vermiculite mining operations) will be compensated should Congress pass the newest version of the Fairness in Asbestos Injury Resolution Act of 2005, or FAIR, thanks to a new Libby-specific provision added to the mammoth legislation Tuesday, April 12. Under FAIR, compensation for Libby residents would range from $100,000 for asbestos-related pleural disease to $1.1 million for mesothelioma. The Libby provision was added after much pushing on the part of Sen. Max Baucus, and seeks to provide some relief to Libby residents (and/or their families) who suffer from asbestos-related diseases brought on by exposure to tremolite fibers, whereas the rest of the bill measures asbestosis in terms of chrysotile fibers (see “Unsanctioned sickness,” Sept. 9, 2004). Rather than address tremolite-related asbestos disease throughout the bill, however, FAIR retains exclusively chrysotile-driven medical standards, while exempting Libby victims from those requirements. In other words, if you suffer from significant tremolite asbestos exposure and live in Libby, you’re likely to be compensated in some form. However, if you suffer from significant tremolite asbestos exposure at any of the more than 50 plants in the continental U.S. where Libby’s asbestos-tainted vermiculite was shipped and processed—in some cases for more than 25 years—the net result of FAIR, as it’s currently written, will be a cold government shoulder telling you to go home and die, without compensation.

There is a possible exception for workers claiming violations of Occupational Safety and Health Administration (OSHA) standards, but to prove such a claim, FAIR requires that claimants use as their yardstick the same disputed OSHA standards of “acceptable” asbestos exposure that got so many unwitting workers into this asbestos mess in the first place.

“The standards that have been promulgated have been subject to manipulation and lobbying,” says Roger Sullivan, a Kalispell attorney whose firm has represented approximately 550 Libby residents in asbestos cases. “Those standards don’t necessarily protect workers from asbestos, but the legislation relies on them just as asbestos companies tend to do in court.”

So, asbestos victims in Libby won’t have to prove violations of OSHA standards as they near slow, painful death via suffocation, but victims who handled asbestos-laden vermiculite in other areas—from Glendale, Ariz., to East Hampton, Mass., to Oklahoma City, Ok., just to name a few—will face the impossible task of seeking compensation for a disease the federal government doesn’t officially recognize.

So if Libby’s tremolite victims deserve compensation, why not similar victims around the country?

The short answer is money. Sullivan says estimates of Grace’s potential liability approach $2 billion, but FAIR would limit pay-outs to $424 million, though additional compensation may be paid out through taxpayer-supported programs such as Medicare and Medicaid.

Sullivan attributes the bill’s two-tiered logic to “a political process where various factions are attempting to protect their constituencies,” be those constituencies Libby residents or W.R. Grace executives.

Sullivan adds that Libby’s special treatment was made possible in part by tenacious advocacy and media attention that made Libby a flashpoint on the asbestos issue—factors that may be absent in other parts of the country.

At the center of the action in Libby is Gayla Benefield, a victims’ advocate who suffers from asbestos-related disease herself, and who watched her parents die of asbestos-related disease. Last week, Benefield was presented with awards from the American Disease Awareness Organization and the Workers Injury Lawyers’ Group. It’s that kind of national attention that has helped secure Libby its own carve-out in the asbestos bill, but Benefield points out that asbestos disease—and compensation from those who knowingly covered up the asbestos threat for years—isn’t just a Libby issue.

“The government is dangling a carrot in front of the people in Libby because we’re setting a precedent, but there are many other plants around the country, and those people are as sick and dying as we are,” Benefield says. “And there’s no provision in there for them.” Included in that group, Benefield says, are the New York City firefighters who breathed in what she describes as “a witch’s cauldron” of toxins, including Libby tremolite, in the aftermath of the Sept. 11 attacks on the World Trade Center.

“It’s a real tragedy,” Benefield said, after a visit to New York City last week to meet with local unions and firefighters. “One apartment building by the Trade Center had 3,800 people in it. Well, Libby has just 2,800 in its city limits. I told the firefighters that it has taken us 40 years [to address the problem] in Libby, but it shouldn’t take 40 years in New York City.”

Tens of thousands of existing asbestos claims nationwide will be funneled into the federal system if FAIR passes, Sullivan says, and the lawyer concedes that he and his clients are concerned about the possibility of a compensation system administered by an appointee of George W. Bush—as the bill mandates—given Bush’s comments on “frivolous” asbestos claims, which the president indicated he felt were something of a national epidemic driven by unscrupulous trial lawyers during his Great Falls appearance earlier this year.

Though both are pleased that FAIR now includes a provision for Libby, don’t count Sullivan or Benefield out of the national picture.

As Sullivan notes, Zonolite attic insulation containing tremolite remains in millions of homes across the country and has been met with little more than a poorly publicized warning from the Environmental Protection Agency instructing homeowners to avoid their attics as much as possible.

“What are we going to do about that?” Sullivan asks. “We have to sound that alarm all across the country.”

Benefield plans to keep doing just that. After all, if the advocate was likely to call it a day once her local concerns were resolved, she would’ve taken the $600,000 she says W.R. Grace offered her to shut up a long time ago.

mike@missoulanews.com

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