Judge Becker: Asbestos Arbiter - FAIR or UnFAIR?

Judge Becker: Asbestos Arbiter - FAIR or UnFAIR?

Wednesday, June 27, 2007

Judge Edward Becker of the U.S. Circuit Court in Philadelphia was asked by Senate leaders to oversee negotiations around a compromise asbestos trust fund bill. In a letter to Judge Becker, EWG President Ken Cook argues that he has ignored the needs of people who are sick and dying of asbestos disease.

May 24, 2005

Honorable Edward R. Becker
19613 United States Courthouse
601 Market Street
Philadelphia, PA 19106
By Fax: 215-597-7217

Dear Judge Becker,

I have obtained a copy of your May 18, 2005 letter to Senator Dianne Feinstein (attached). It has prompted me to express my long-held concern that your involvement in pushing the Senate to pass S.852, the asbestos trust fund bill known as FAIR, has become overtly unfair, emphasizing the relief of companies that face asbestos-related liability far more than the relief of tens of thousands of people facing asbestos-related diseases.

In your letter to Senator Feinstein, you cover four specific "difficulties that the business and insurance stakeholders have identified" in the bill as it currently stands. As was the case with your testimony before the Senate as markup commenced, you address none of the difficulties the sick and dying have with the bill — mainly, that those who will get sick in the future will be left with no chance of financial help in coping with long-term health problems and, in many cases, near-certain death.

Allow me to respectfully submit two difficulties identified by stakeholders who actually represent the public's interest in this legislation.

First, as you know, the U.S. Department of Justice's (DOJ's) recent criminal indictment of senior executives at W.R. Grace makes it clear that people who simply lived in Libby, Montana, where asbestos was mined, are at increased risk of asbestos cancers and lung diseases — even if they never worked at W.R. Grace itself. What you might not know is that the asbestos from Libby was processed in some 200 facilities across the country. Drawing on company records compiled by the Environmental Protection Agency (EPA), but not previously made public, we have documented and mapped these sites on our Website, www.ewg.org. The map shows just how much of the country has a public health stake in what the Senate decides.

People who lived near these plants were exposed to elevated levels of airborne asbestos drifting from these sites according to two federal agencies, the Agency for Toxic Substances Disease Registry (ATSDR) and EPA. The agencies are jointly conducting formal public health and environmental assessments in 28 locations where the Libby asbestos was shipped and processed. I am at a loss to understand why these people's difficulties don't merit your intercession — which amounts, in my view, to lobbying — while powerful industries do.

Second, there are reasons why the medical and exposure criteria you developed for trust fund eligibility in FAIR are not recognized by the two relevant medical associations, the American Thoracic Society (ATS) and the American Lung Association (ALA). These same reasons also explain why not one independent medical expert can endorse these criteria; the standards don't represent medicine, they represent accounting. And it is accounting that is tilted most unfairly to favor liable companies. If there is any sound medical reason for these wholly fabricated criteria, I have yet to hear it. Until then, I can only assume that they are designed to keep the trust fund within a budget to which industry "stakeholders" will agree.

Attached to your May 18 letter are several pages of legislative language satisfying the concerns of a small group of manufacturing and insurance interests. I assume that this is because they are the ones who drafted it. This is language that you invited, as a representative of Senator Specter, and which you duly passed along to Senator Feinstein.

Your investment of time in trying to resolve this impasse is laudable. However, I suggest that until the people who will be permanently, personally, and irreversibly affected by this legislation get the same kind of access and attention you have afforded the business lobby, no one can morally refer to S. 852 as FAIR.


Kenneth Cook, President
Environmental Working Group

Cc: Senator Arlen Specter, Senator Patrick Leahy

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