Assessing Asbestos

Posted March 8, 2004 at 6:58pm

Ah, the deadline. That powerful, mystical force that can move legislative mountains or doom bills to the trash heap.

Of course, Senate Majority Leader Bill Frist (R-Tenn.) is hoping for the former when he makes good on his threat to bring an asbestos litigation bill to the floor in early April — with or without an agreement between business and labor.

When Frist announced on Nov. 22, 2003, that asbestos makers, insurers and unions needed to come to an agreement before the end of March 2004, it certainly seemed like plenty of time to hash out the tricky negotiations on how to create a multibillion-dollar fund that would remove asbestos-related lawsuits from the courts while still compensating victims for their exposure to the dangerous fibers.

But now, with only weeks to go before Frist’s deadline, the interested parties and their Congressional mediators are still scrambling to agree on some of the more complicated problems with the bill, mainly how — and how much — victims will be compensated.

Still, most agree the deadline is the best thing that could have happened to the debate.

“I think it helps rather than hurts,” said Sen. Chris Dodd (D-Conn.), who is a principal Senate negotiator looking to balance the interests of both insurance companies and labor interests in his state.

“You need the timeline and the crunch at the very end to make people move,” echoed a Senate GOP aide involved in the talks.

Even Senate Minority Leader Tom Daschle (D-S.D.) said he believes establishing a certain time for floor action on the bill may help break the months-long impasse on the bill, but added negotiators had better hurry.

“The more we can resolve prior to the time it comes to the floor, the better things will go,” he said.

Among the few naysayers is the labor behemoth AFL-CIO.

“The bill has to be cleaned up and fixed,” said Peg Seminario, director of the union’s Occupational Safety and Health Department. “We don’t think it’s possible within that timeframe.”

Labor’s dissatisfaction with the bill and the negotiating process, coupled with Democrats’ desire to stand fast with their union allies, has been the most frustrating aspect of the talks for Republicans, according to Senate GOP aides.

For their part, Democrats charge that Republicans are simply trying to help the affected businesses get a bailout rather than assisting the victims of asbestos exposure.

“That’s always the case in most of these labor-versus-big business issues,” said the Senate GOP aide of the dispute. “Inherently among staff, there is a bit of partisanship because of it. It’s the nature of the beast.”

Chief among the partisan problems facing the primary negotiating group — which includes Frist, Daschle, Dodd, and Sens. Orrin Hatch (R-Utah), Patrick Leahy (D-Vt.) and Arlen Specter (R-Pa.) — is a dispute on what roadblock to resolve first.

Asked what the biggest issue for Democrats is, Daschle said, “The size of the trust fund. It has to be higher. It’s just not sufficient to meet the need that’s there today.”

Seminario agreed, saying last year’s Frist-brokered agreement between asbestos makers and insurance companies on the fund’s size — approximately $115 billion — will not cover all the claims submitted to the fund.

She also complained that the money pot is largely theoretical because Republicans, who have chiefly crafted the bill, have not released the exact list or number of companies that will be contributing to the trust fund.

Plus, Democrats charge that Republicans are simply stonewalling on the funding and offering arbitrary numbers.

“It’s a number. Labor’s got another number. It’s something we can compromise on,” predicted a Senate Democratic aide.

Both Republicans and Democrats involved in the Senate talks said the dividing line between them was roughly $35 billion, with Republicans sticking to $115 billion and Democrats insisting on $150 billion.

Republicans say the final size of the trust fund will be determined by a number of other issues, including how to administer the fund and the medical criteria victims must meet. Therefore, GOP negotiators insist they have to clear up those sticky problems before talking about changing the numbers.

“We can’t resolve the funding without resolving the other stuff,” said a senior Senate GOP aide. The aide acknowledged that it was possible that industry groups would agree to a number higher than Frist’s $115 billion during pre-floor negotiations, but noted that a change in the fund’s size couldn’t be done by amendment on the floor.

“Any amendment that jacks up funding will make [Frist] pull the bill,” the senior GOP aide predicted.

Part of the problem, Republicans acknowledge, is that some defendant companies (those that are being sued for asbestos exposure) are willing to throw more money into the overall pot to make the problem go away — especially if they are one of the handful of companies facing bankruptcy because of the number of asbestos claims.

And Democrats know it.

“A few billion dollars in order to put this behind them is a price a lot of them are willing to pay,” said the Senate Democratic aide.

But GOP negotiators counter that they are not authorized to offer more money than the industry-agreed-upon $115 billion because the fund is based on voluntary contributions from insurers and asbestos makers.

“There is more money out there, but [the companies] are not going to do that unless they see these other issues hashed out,” said another Senate GOP aide.

On the other hand, Specter has been spearheading separate meetings with industry groups and labor to resolve the nonmonetary issues involved in creating the asbestos trust fund.

And while the group has come up with a number of solutions, such as placing the fund within the purview of the Labor Department, and is continuing to work out how to deal with people who were exposed to both asbestos and silica dust, the funding problem is still muddying the entire process.

As for how it will all turn out, it’s anybody’s guess. But Specter is continuing to lead his weekly meetings, and Senate aides for the chief negotiating lawmakers have been meeting nearly three times a week.

All in all, they’re optimistic.

“It’s a high priority for people in both caucuses,” Daschle said.