The Fairness in Asbestos Injury Resolution Act of 2005

By Gavin Burdge, CSP
BMT Designers and Planners, Inc.

Background
Financial compensation for asbestos disease continues to clog the U.S. courts at an increasingly alarming rate. An “asbestos litigation” Google search yields 1,370,000 websites and many, if not most of them, are law firms. A Rand Corporation study in 2002 1reported that 600,000 asbestos claims have cost businesses $54 billion at the end of 2000, and more than 60 companies have been forced into bankruptcy. This study also found that 65% of the compensation was paid for non-cancerous conditions .

The courts have recognized the extent of the asbestos litigation and have recommended legislative action. For example, i n 1999, the court in Ortiz versus Fibreboard Corporation found that the “elephantine mass of asbestos cases ... defies customary judicial administration and calls for national legislation2.” The court in Norfolk & Western Railway Company versus Ayers recognized the finding again in 20033.

The Fairness in Asbestos Injury Resolution Act of 2005 is the Congressional response to asbestos litigation, the financial consequences to many different American businesses and the inability of the courts to timely address the expanding legal quagmire. This legislation is also a reaction to the asbestos environmental contamination and asbestos disease among people living near a vermiculite mining and milling operation in Libby, Montana. The Act specifically mentions Libby, Montana and its affected residents. Since “substantial asbestos exposure” is defined in such a general, qualitative manner without direct reference to industrial hygiene, establishing legitimate claimants could prove difficult. This legislation recognizes the asbestos concerns caused by the activities of a vermiculite mine in Libby, Montana. However, there may be other mining operations in the U.S. that could be similarly affected.

Major Components of the Act

The Fairness in Asbestos Injury Resolution Act of 2005 seeks to:

• Establish a method in lieu of lawsuits or other court proceedings to determine monetary awards for persons with lung cancer, mesothelioma, asbestosis or other cancers caused by occupational exposure to asbestos and to handle claims against affected companies.

Establishes a federal government body called the Advisory Committee on Asbestos Disease Compensation in the U.S. Department of Labor and an Office of Asbestos Disease Compensation to administer the program and to process and evaluate claims for injury “for which there is presumption of substantial occupational exposure to asbestos” [(SEC. 102(a)(3)(b)(4)].

SEC. 102(a)(3) specifies the qualifications of the members: “All of the members shall have expertise or experience relevant to the asbestos compensation program, including experience or expertise in diagnosing asbestos-related diseases and conditions, assessing asbestos exposure and health risks, filing asbestos claims, administering a compensation or insurance program, or as actuaries, auditors, or investment managers. None of the members shall be individuals who, for each of the five years before their appointments, earned more than 15% of their income by serving in matters related to asbestos litigation as consultants or as expert witnesses.”

• Specify the amount of money awarded to people who can show that their cancers or other lung disease (mainly asbestosis) are caused by or associated with occupational exposures to asbestos.

Defining Asbestos Exposure

It is important to note that s ubstantial occupational exposure to asbestos is based on the general way that asbestos was found in the workplace. According to SEC. 121(a)(14)(A) Medical Criteria Requirements, “Employment in an industry and an occupation where for a substantial period of a normal work year for that occupation, the claimant handled raw asbestos fibers; fabricated asbestos-containing products so that the claimant in the fabrication process was exposed to raw asbestos fibers; altered, repaired or otherwise worked with an asbestos-containing product such that the claimant was exposed on a regular basis to asbestos fibers or worked in close proximity to other workers engaged in the other activities such that the claimant was exposed.”

In the Fairness in Asbestos Injury Resolution Act of 2005, three levels of asbestos exposure are defined in a qualitative and subjective manner based on the length of employment in an asbestos exposure-related job. They are:

• Moderate Exposure

During a substantial portion of a normal work year, the person worked in areas immediate to where asbestos-containing products were installed, repaired or removed and involved regular airborne emissions of asbestos. This counts as one year of substantial occupational exposure.

• Heavy Exposure

During a substantial portion of a normal work year, the person was involved in the direct installation, repair or removal of asbestos-containing products and thus was exposed to asbestos on a regular basis. This counts as two years of substantial occupational exposure.

• Very Heavy Exposure

During a substantial portion of a normal work year, the person worked in primary asbestos manufacturing, a World War II shipyard or the asbestos insulation trades and thus was exposed to asbestos fibers on a regular basis. This counts as four years of substantial occupational exposure.

Note: Each year of exposure calculated under paragraphs 1, 2 and 3 that occurred before 1976 will be counted at its full value. Each year from 1976 to 1986 will be counted as 1/2 of its value. Each year after 1986 will be counted as 1/10 of its value.

The A ct also establishes in SEC. 121(c)(3) a “Take-Home Exposure ” for those living with a claimant, but a physician's panel must review the claim. In SEC. 121(c)(2), “General Exposure Requirements,” claimants may also establish “exposure to asbestos” in a qualitative manner by any “credible evidence,” such as a claimant affidavit. The exposure requirement is waived in SEC. 121(c)(4) for workers or residents of Libby, Montana only.

Also, the Environmental Protection Agency (EPA) administrator will designate “presumed substantial exposure to asbestos” in certain industries, occupations and time periods.

Claimants' award amounts will be based partly on whether or not they smoke or used to smoke.

Further Provisions of the Act

In SEC. 408, “Violations of Environmental Health and Safety Requirements,” the A ct expands and enhances the penalties for those who violate the Occupational Safety & Health Administration's ( OSHA) rules for occupational exposure to asbestos in 29 Code of Federal Regulations (CFR) 1910.1001 or the rules of the Environmental Protection Agency (EPA), specifically Section 17 of the Toxic Substances Control Act and Section 113 of the Clean Air Act. Possible penalties include imprisonment. This provision could establish more serious penalties for other OSHA carcinogens or regulations.

However, the Act does not s pecify a quantitative definition for “exposure to asbestos” in scientific terms. For example, regular basis means on a “frequent or recurring basis.” It also does not define industrial hygiene or mention the importance and significance of employee exposure monitoring in a quantitative manner.

1. Website: http://www.rand.org/news/press.02/asbestos.html

2. Statement of Chairman Henry J. Hyde, Committee on the Judiciary, Hearing on H.R. 1283, “Fairness in Asbestos Compensation Act of 1999,” July 1, 1999. http://www.lakesidepress.com/Asbestos/HTML/HR1283-FairnessAct1999.htm

3. Website: http://fsgateway.law.duke.edu/publiclaw/supremecourtonline/certGrants/2002/norvaye.html