Expanding Charitable and Volunteer Opportunities Act

Mr. President, first, let me acknowledge the obvious. A lot of work has gone into this bill. Senator Specter, Senator Leahy, and members of the Judiciary Committee, including Senator Hatch, have spent hours, days, weeks, and months preparing this bill. It is a bill that should have taken a long time because it is a bill that says something very basic and fundamental and, in many ways, revolutionary: It says we can no longer trust the court system in America. It says the court system is inadequate in America to compensate victims. That is a charge not made lightly, I am sure, by the sponsor of this legislation. It is one we should not take lightly on the floor of the Senate because we have established over the course of this Nation's history some things which are generally accepted by most Americans.

It is true that Congress and legislatures write the law. The President and executive branch enforce it. And when it comes to making decisions of how that law applies to our lives, we trust the courts. The decision has been made by those who are pushing this bill that we can no longer trust the courts. The decision has been made that we have to replace our court system with something else. If we are going to step away from a time-honored institution and tradition in America to create an alternative, it is a daunting task.

Those of us who have been critical of this legislation are going to hold the sponsors to some very fundamental questions. The first: Can you provide the same level of fairness and compensation in your new system that the courts of America provide today? The answer can be found in responses from victims groups around the country. The victims of asbestos have been writing to Members of Congress saying: Don't pass this legislation. The compensation you will give to the victims and their families is inadequate and unpredictable. Those families have come to see me. They have heartbreaking stories--stories of young men and young women whose lives were snuffed out because of exposure to asbestos. In not a single case have I ever met somebody who said: I guess I knew I had it coming to me; I decided to expose myself to asbestos. I never ran into a person like that or heard a story like that.

The victims of asbestos are as surprised by the diagnosis as they can be. It is no surprise to us when we consider this insidious disease. These flaky fibers which are breathed into the lungs can sit there like a timebomb for decades. Do you recall the movie actor named Steve McQueen? He died from mesothelioma. He was exposed to asbestos at some point in his life, which later exploded into a fatal lung disease. Earlier this week on the floor, I talked about my former colleague, Bruce Vento, of Minnesota, a Congressman from St. Paul. He was a picture of health and was in the gym every morning, and then he didn't feel well. He went to the doctor, and after a chest x-ray, they said: You were somehow in your life exposed to asbestos. Now you have mesothelioma and just months to live.

Those stories are repeated over and over again about men who worked in asbestos mines who got off scot-free and never developed a problem, but their wives at home, who shook out their work clothes before putting them into the washer, breathed in the fibers and contracted asbestosis and mesothelioma and died. It is insidious.

I could spend more than an hour telling you that, since 1934, the companies which have been creating asbestos products have known how dangerous this product is. I could, and maybe I will at some point, go through the extensive evidence of deception and cover-up by these companies so that their employees did not understand the serious dangers they were exposed to in the workplace, and the dangers that many of them took home in their work clothes. These victims and their families come to visit me--lovely young women from the Chicago suburbs with beautiful children, and they show pictures of families whose husbands were lost in their early forties to mesothelioma.

This bill says that compensation for victims of asbestos is capped at $1.1 million. If you happen to be a mesothelioma victim, that's only $1.1 million for medical bills, lost wages, and to raise children. That is a figure which might have sounded pretty large to start with, but it begins to be very modest when you look at individual victims and their families. That is why the victims have come to us and said: Don't replace the court system in America with this approach. It is not fair to the victims.

Others have come to us as well and said that the way you put the money into the trust fund, which is supposed to pay the victims, is a mystery. We have repeatedly asked the chairman of the Judiciary Committee who is the sponsor of the legislation, to provide us with the documentation. Please show us how $140 billion will adequately compensate the victims of asbestos exposure over the 50-year life span of this bill. We are still waiting for the information. So we are going to replace the court system with a trust fund. We are going to say that $140 billion will be enough for 50 years, without any evidence of how that number was arrived at or whether that number will really meet the needs of the victims. I will speak in a few moments about those experts who have analyzed this bill and found that the numbers underlying the assumptions are totally wrong.

Another group that comes to us to discuss this bill are those being asked to pay into the trust fund that will be created by this bill. The argument has been made on the floor, thank goodness, that the taxpayers won't have to pay into this. These will be businesses and insurance companies which will put money in the trust fund so they don't have to pay out asbestos claims any longer in court. Well, it turns out that some businesses will do quite well. Some of them are going to receive a windfall in terms of what they have put into this fund as opposed to what they might pay in court.

U.S. Gypsum is a company that has a large legal exposure for asbestos. Because of corporate reports they made public in the last couple of weeks, we now know that, in order for the company to pay out all the existing claims filed against USG by victims of asbestos, they estimate it will cost them in the range of $4 billion. This chart is an excerpt of an article from BusinessWeek dated January 27, 2006, which says, USG is willing to cough up $4 billion to settle victims' claims. That is $4 billion of asbestos exposure for this one corporation. So if they didn't pay that amount in court settlements, and instead came into this bill, what would they pay into this trust fund? That figure is $900 million, according to USG's own corporate report.

This is a windfall. They have to be smiling and praying this bill is going to pass because if it does, the company is off the hook for over $3 billion of legal liability that they even admit to in court. And who will make up the difference? Who is going to make up the $3.1 billion this company should be paying the victims? Other companies. Companies that may never have had many lawsuits filed against them because of asbestos, and companies that have never paid out a penny in terms of asbestos claims, even if they were sued. These smaller companies will be expected to pay millions and millions of dollars into this trust fund when larger companies are walking away with a windfall.

So we asked again to the sponsor of this legislation: If you cannot tell us how you arrived at the figure of $140

billion, can you at least give us the names of the companies and how much they are expected to contribute into this trust fund? And we are still waiting.

The chairman spoke yesterday about how he was going to subpoena these records. I hope they will be produced during the course of this debate. I hope we will have a list of all the businesses with----

I will be happy to yield.

I know the chairman made that statement yesterday, and I am hoping he will share that information.

May I respond to the chairman by stating that I understand this information on the list has been characterized as confidential information before the committee and cannot be shared publicly.

I am aware of the fact they reviewed it, but I am also aware of the fact this has not been made public as part of this conversation and part of this record.

Let me respond, if I may. Why is this cloaked in secrecy? Why is this a secret conversation? How can we have confidence that the $140 billion figure has any validity? How can we have confidence that the businesses that will be called on are going to be able to contribute to this fund if this is cloaked in secrecy and confidentiality? Most of these lawsuits are open, public record. It is hard for me to imagine that a business is going to be sued because someone has identified them as a potential contributor to this trust fund.

Nevertheless, if we are expected to replace the court system in America with this new trust fund system, how can we do it with any confidence if all the information is not on the table? Why the secrecy? What are we concealing? What we are concealing, frankly, is the most controversial elements of this bill: a question of whether $140 billion will actually pay the victims--and I doubt that it will--a question of whether companies are going to be asked to pay into this trust fund who shouldn't be asked to pay into the trust fund and, subsequently, may be forced into bankruptcy, closing their doors because of it. These are questions of great moment. To say a staff person can have access to secret files in an office hardly gives any comfort in the midst of a public debate about an issue of this magnitude.

I will yield for a question.

I say to the Senator from Pennsylvania----

As the Senator from Pennsylvania is as well. In response, unless and until we put this information out to be reviewed in a comprehensive and honest way, I don't believe we can stand before the American people and say this is a good replacement for the courts of America.

Let me tell the Senator what happened. A member of my staff was invited to the Senator's office to view the secret list. He was warned ahead of time not to take any notes, not to make any copies, and not to disclose the nature and substance of the secret list because they were treated as committee confidential. My staffer went to view the list and reported to me the information wasn't very helpful in answering the most basic questions about the companies, their liability, and, of course, the impact on each company and whether they can survive the contributions to the trust fund.

Under the committee confidential rule the chairman has imposed on all staff members reviewing this list, I am not sure I can say much more about this secret list on the floor, but I will say this is a highly unusual process to have secret lists, secret information, and confidentiality, when we are literally talking about people's lives and health. I don't think the Senator can come forward and meet his burden of proof, to go back to the language of trial lawyers, that we should replace the court system in America based on secret lists kept in his office. That strikes me as a far cry from the kind of public debate which we should invite for this bill.

I have been more than happy to yield, and I will continue to yield.

I say to the Senator, when he makes it available for the inspection of all Members and the American people, it is no longer a secret list. Mr. President, is the Senator prepared to do that? That is my question, without yielding the floor to the Senator.

I was happy to yield again to the Senator, whom I respect very much. I tell him, for the record, on May 25 of last year, we sent a letter to him about Goldman Sachs, asking that we have some information about the $140 billion figure, how it was arrived at, and how it will be paid for. So this is not the first time this issue has come up.

It is curious to me that we are writing a bill that is going to change the laws of all the States of America, and if we are going to close those courtrooms across America. Yet the Senator from Pennsylvania had to issue a subpoena to obtain a list of the names of the companies that are going to contribute to the trust fund. This is a very strange process.

Usually, legislation emanates from within Congress and affects the outside world. It appears that the secret list at issue emanated from the outside and whoever created it wasn't anxious to share it. So if there is skepticism by those of us critical of the bill, I think there is good reason.

We never received a reply to our May letter of last year. It is an indication to me that this whole process has been very unusual and very different from any process I have seen.

Somewhere, someone has come up with a number as to how much we need to compensate these victims, and someone has come up with a source on how that number will be arrived at, and the chairman had to go to the lengths of subpoenaing the information that was the basis for this bill that will affect hundreds of thousands of Americans and their lives.

I say to the chairman, he is the most responsive Member I can think of, and I thank him for his service and friendship. I have shared with him my concerns on this issue, and he has gone so far as to issue a subpoena.

The point I wanted to make to the chairman is raising this issue was not sua sponte. I started asking this question long ago as to why we couldn't get the most fundamental----

Let me reclaim my time but also say to the chairman, parenthetically, what we engaged in--yielding back and forth--draws perilously close to debate on the Senate floor, which we try to avoid at any cost. I will do my best to always yield to meaningful questions and comments as those made by the chairman of the Senate Judiciary Committee. But I want to return to my comments.

This is a curious situation, where the chairman of the committee who wrote the bill had to issue a subpoena to get the information about what the bill meant. Now that is a curious situation. It leads one to believe that someone else, other than this committee, is writing the bill. Who could that possibly be? Who has enough interest in this matter to want to move forward with passing this bill outside of Capitol Hill? I gave one example earlier of one corporation which stands to gain $3.1 billion if this bill passes. Those are companies very interested in this bill.

There has been a lot of talk on the floor about the lobbying effort on behalf of this legislation. It has been huge.

(Ms. MURKOWSKI assumed the Chair.)

After I finish my sentence, I will yield. I concede this bill is a clash of special-interest titans on both sides. I think proponents of the bill have invested a lot more in its passage than those who oppose it. Maybe we will never know the true figures, but the interesting thing is that the first bill of this Senate session is not a bill to address the Medicare prescription drug crisis, it is not a bill to provide affordable, accessible health care to Americans, it is not a bill to deal with the energy crisis and the heating bills that are killing us in the Midwest and the Northeast, it is not a bill to deal with pension security for workers who are losing a lifetime of pension investment to a merger or a bankruptcy or corporate sleight of hand. It is a bill that is brought by lobby groups and special interests that have invested tens of millions of dollars trying to force this issue and bring this matter before us on the Senate floor.

I just finished. That was a period.

I am not yielding the floor unless the Senator wishes to ask a question. Then I will be happy to yield.

Without yielding the floor, would the Senator please tell us what Government agency he subpoenaed for the information to produce the secret list?

Without yielding the floor, would the Senator please state for the Record the names of the nongovernment agencies, private companies he had to subpoena to understand the underlying basis for this trust fund and how $140 billion was arrived at?

Madam President, if this were a courtroom I would say the witness is not responsive. I asked the Senator a very direct question: Who did you send the subpoena to if it wasn't a government agency? And the answer, he knows, is: A private company. The obvious question is: Why are private companies writing a bill we have on the floor of the Senate today? They are writing that bill because they have a deep, personal interest in this bill. They are going to do quite well, thank you. Some companies are going to end up, as a result of this legislation, walking away from their legal liabilities in court for asbestos injury and asbestos death. These are the companies that want to see us close down the court system for these victims and create something else because they are the winners.

I hope the Senator from Pennsylvania--I don't want to create any umbrage, or raise any questions about his integrity. I am not. But I hope he will at a later point in the day come to the floor and disclose the names of the private companies that created the secret list that suggests there may be thousands of corporations across America that will have to contribute to this trust fund.

I wish to go to the most basic questions about the $140 billion. Where did we come up with $140 billion? How can we suggest that over the next 50 years or more that will be enough? It is important that it is enough. Yesterday my friend, the Senator from Pennsylvania, addressed this issue. He came to the floor and this is what Senator Specter said about this $140 billion figure:

The figure of $140 billion was worked out by Senator Frist

and Senator Daschle about a year and half ago. It is a figure

which rose from that which was originally put in the trust

fund to that figure where CBO has given us the assurance that

the range of cost will be somewhere between $120 billion and

$135 billion. Under one contingency, it could go to $150

billion, but that is unlikely.

Senator Specter went on to say something else, and I think is a very important statement. It is a long sentence, but bear with me:

We have within the structure of the bill a provision that

the administrator can make a reevaluation going through

certain preconditions so that if it looks like we're going to

exceed the $140 billion, we can make modifications in the

medical standards and criteria to stay within the $140

billion.

End of quote from the Senate floor. A statement by the chairman of the Judiciary committee yesterday stating there will be modifications in medical standards and criteria. Make no mistake what that means. It means less money for victims. It means if this fund runs out of money, the victims will receive even less. So the winners will be winning more, the losers losing more. And the victims will be the ultimate all- time losers in this situation.

I think it was an honest answer. I believe Chairman Specter was very candid in what he said. He could have said that if we exceed $140 billion in claims, that we would return all the cases to the tort system and the court system. But he knows if he said that, it would be hard to explain how we get into this trust fund for a few years, close the courthouse door, cut off all the pending lawsuits, and then declare the trust fund doesn't work. He didn't say that.

He could have said the Federal taxpayers will have to step in at that point and take care of the victims. But he knew that would cause a problem, not just on his side of the aisle but across the Senate. A Federal bailout is not viewed very positively when our Federal budget is facing the deepest deficits in the history of the United States.

So he said, and I admire his candor, we will just reduce the amounts we pay the victims. That is how we will make $140 billion work. That is a very candid and straightforward, but harrowing answer.

To say to people, if you were in the midst of a lawsuit, if you have worked around asbestos and have asbestosis and you are limited in your activities and maybe in the span of your life, and you filed a lawsuit against the company that exposed you to this asbestos, and you worked-- and I know this because I used to do this for a living--worked for years to get that case into court with great sacrifices and frustrations and motions and continuances, and you are finally there-- when this bill passes, if you don't have your case before a jury, you are finished. Close the door. Take your file home. You get to start all over.

Then what happens? You go into this trust fund, which on balance will probably pay you less, and you hope and pray there will be enough money there to pay you. If there is not, Senator Specter has said we will cut back your pay and your compensation for being injured by asbestos until we can hit this magic $140 billion number. That is the reality of this bill.

I think it is fair to ask, Is the $140 billion figure accurate? I have been through this on the Senate Judiciary Committee for several years. Senator Orrin Hatch offered a version of this bill. He began by saying all we need is $90 billion over 50 years. Then we got into a committee debate and markups, and the figure moved up to $154 billion during the course of committee process. At that time the CBO, the Congressional Budget Office, estimated it would cost between $124 and $136 billion for anticipated claims.

Since this virtual endorsement of the trust fund bill from 3 years ago, the Congressional Budget Office has progressively but unquestionably expressed greater and greater reservations about that number, about the viability of the trust fund and whether the figure we are talking about today is an honest figure to compensate victims.

Let me share this report from the Congressional Budget Office. I will read it:

There is a significant likelihood that the fund's revenues

would fall short of the amount needed to pay valid claims, as

well as debt-service and administrative costs. There is also

some likelihood that the fund's revenues would be sufficient

to meet those needs. The final outcome cannot be predicted

with great certainty. Without a substantial increase in the

resources available to the fund, there is no way to guarantee

the fund will not either revert to the court system or

require additional funding.

That is an honest answer. When we ask this official organization of Congress that is supposed to assess whether $140 billion is enough, their honest answer is, we can't say either way, but we certainly can't give you a guarantee that $140 billion is all that will be needed.

The Congressional Budget Office went on to say, in analyzing the bill before us:

CBO expects the value of valid claims likely to be

submitted to the fund over the next 50 years could be between

$120 and $150 billion, not including possible financing (debt

services) costs.

Remember those words. Because it turns out the money from companies will not come into the trust fund fast enough to pay the massive influx of claims right at the start, the trust fund is going to have to borrow that money. And in borrowing money, the trust fund has to pay interest and finance costs. And all of the lamentations on the floor here about attorney's fees notwithstanding, at the end of the day, we will find that substantial amounts of money in the trust fund will be paid in interest costs, from the borrowing to try to keep this fund afloat as legitimate asbestos victims ask for their fair compensation.

That is a reality. It is a reality that suggests the $140 billion figure cannot be substantiated. If this were an idea of Senator Daschle and Senator Frist a year and a half ago, as much as I respect both of them, and I respect them very much, I don't know that either one of them is actuaries, nor do I know that they have the expertise to come up with a magic figure to predict the cost of this trust fund over a 50-year lifespan.

Let's take some of these concerns directly.

The CBO states that the expected $120-$150 billion in

qualified asbestos injury claims on the trust fund ``does not

include possible financing costs and administrative expenses.

The interest cost of this borrowing [they say] would add

significantly to the long-term costs faced by the fund. . .

.''

What are the financing costs? We are talking about debt service, money the Federal Government has to expend in order to either lend on its own to the new trust fund or go to private capital markets. The debt service costs could reach $50 billion or more.

We would find, then, that more than a third of the money going into the trust fund would be used to pay out in interest costs, not in victim compensation. Why? Because the secret and maybe soon public list of contributions by companies and insurance companies

indicates not enough will be coming into the fund to match all of the injured victims across America who are going to be turning to this new fund, which, at the same time, closes down the court system for hundreds of thousands of American citizens.

Here is more of the CBO's analysis:

Because expenses would exceed revenues in many of the early

years of the fund's operations, the administrator would need

to borrow funds to make up the shortfall. The interest cost

of this borrowing would add significantly to the long-term

costs faced by the fund and contributes to the possibility

that the fund might become insolvent.

Is it worth the gamble? Is it worth the gamble for us to pass a fund to close down the court system, to tell people who have worked for months and years to bring their case to a judge or a jury that they are now out of the system, then close the courtroom doors? Is it worth the gamble to them and their families that our calculations are right? Should we replace the court system on the possibility that we have guessed right about $140 billion, that in fact it would not become insolvent? Or should we shrug our shoulders and say, well, if we guessed wrong, what is the worst thing that could happen? According to the author of this bill, the victims will receive less money.

So when the chairman of the Judiciary Committee suggests that the chorus of voices of victims is what brings us to the floor today, I would say to him I am sure there are some who are in that chorus, but it might not be much more than a small quartet. The larger choir of victims across America has told us about their opposition to this bill. I could read that list of victims, unions, and other groups into the record. They are telling us this is the wrong thing to do. It is unjust to close the courthouse door to thousands of people across America and to say to them: Trust us, we have an idea for a trust fund. It has never been tried before, we are not quite sure of the figure, the contributors to the trust fund are on the secret list which may become public, but trust us. It is well worth your life and your health.

There is a group called Bates White which testified before the Senate Judiciary Committee, a group that has represented businesses and various organizations.

In September 2005, this economic consulting firm issued a report about this bill. I don't know why they conducted this report, but I have read it and attended a Judiciary Committee hearing where Dr. Charles Bates of that firm testified. According to the author, the report examined the viability of the fund. They focused on two primary categories of claimants who posed the greatest threat to the fund's financial viability.

First, they conclude that the bill would create entitlements for many individuals with lung and other cancers who were not compensated in the historical tort environment. The Bates White report states this entitlement likely will result in at least a tenfold increase in the number of other cancer victims relative to the cases being brought in our courts today.

Here is why. Based on epidemiological studies between 2000 and 2055, some 3.5 million people in the eligible population covered by this bill will develop lung or other cancers, not including mesothelioma. Asbestos is only one of the myriad of significant risk factors that may be causally related to lung and ``other'' cancers. But S. 852 would compensate all cancer claimants who have minimal pleural or lung changes based on subjective x-ray readings.

According to this study, the filing rates for the trust fund are also expected to increase substantially over the historical rates in the tort system due to the relative ease of the filing which is to be created by this trust fund bill. Thus, according to Bates White, the bill would compensate for a dramatically larger number of patients.

Second, the Bates White report concludes that the bill is going to revive what they call ``dormant claims,'' which are asbestos injury lawsuits that have been settled with most but not all defendants. The bill allows some claimants who filed their lawsuits prior to 2000 to be eligible for payment in the trust fund if those claims have not been fully resolved. Thousands of such cases currently remain on court dockets.

This incremental entitlement for the differential between the amounts collected in such suits in settlement or judgments, and the amount awardable from the fund, they estimate, could total up to $26 billion. And if these victims seek to recover the difference, that would add significantly to the cost of the trust fund.

Let me say at the outset that I think the court system as well as the trust fund should be generous to victims. As I said earlier, I don't know of a single victim of asbestos exposure who knowingly and willingly exposed themselves. Many of them were duped by deception of corporate officers who insisted there was no danger involved.

I am not questioning the decision in the bill to extend such payments, but I do join Bates White in questioning whether the programs set forth in the bill can be paid for. What Bates White has said is, if you look at the bill as it is written, and the people who will be compensated, it is going to cost dramatically more than earlier estimates.

Based on these two factors and using very conservative economic assumptions, the Bates White study concludes the bill would create entitlement claims valued between $301 billion and $561 billion.

The bill's trust fund is capped at $140 billion. This study says the amount of payouts could be more than double, or as much as three times, or even more than that in actual payouts. That is how far we could have missed the mark when it comes to this economic analysis underlying this bill.

What this study found raises serious questions about the solvency of this fund: Saying to the thousands of victims, Close up your court case, stop working with your attorney, stop going to the courthouse, we are going to take care of you, and then we don't. We come up with a $140 billion trust fund that is inadequate to the needs of these victims.

I also want to point out that Bates White updated their study yesterday. The economists at this firm announced this week that they found a $90 billion error in the Congressional Budget Office's analysis of this same bill.

This is a serious issue. It should be serious enough to take this bill off the calendar. If the CBO's estimate is wrong by $90 billion, we have to stop where we are. We shouldn't go forward. Bates White's new analysis demonstrates this oversight.

According to the numbers the Congressional Budget Office presents in its own report, CBO asserts that 1.5 million individuals will receive compensation for nonmalignant conditions, meaning they have bilateral pleural disease and 5 or more years of exposure. Under this bill, these victims are entitled to medical monitoring.

Yet, national cancer incidence rates establish that more than 200,000 of these claimants among the 1.5 million will eventually develop lung or other cancers.

This means, if we take the CBO numbers as the baseline, there could be an additional 200,000 claimants who will qualify for lung and other cancer claims, which are paid out much higher levels of compensation in this bill. Yet the Congressional Budget Office's current estimate takes into consideration only 28,000 people in this category.

So, the new information from Bates White presents a real concern that the Congressional Budget Office may have missed at least 170,000 potential victims who weren't considered in the CBO's earlier analysis.

The Congressional Budget Office relied on an arbitrary standard assumption that only 15 percent of the population will ever file for the higher claim. These additional claimants represent more than $90 billion in additional costs to the fund.

CBO's estimate currently assumes that 85 percent of qualifying claimants who took the trouble to sign up for medical monitoring under this bill would not file the paperwork to collect their entitlement if they ever developed a more serious illness down the road. This is not a credible scenario.

After all, isn't the purpose of medical monitoring to provide early detection of these and other diseases, which means that more people rather than fewer would have the opportunity to learn about such illnesses?

As late as yesterday, there are new, fundamental questions being raised about whether this trust fund at $140

billion gives us an honest figure to work with. If it is not an honest figure, it means as the years progress, we are going to have to reduce payments to victims.

To suggest this is a victims bill is to overlook the obvious: the starting point of the bill is so flawed. Let me show you some charts about how this will be funded because I think they are a good indication of the problem that the fund faces in convincing a majority of the Senate to support this bill.

This is a chart which addresses the timing of this bill, comparing when the liabilities will arise for claims coming into the fund, versus when the revenues from the companies will come into the trust fund. As you can see, the red line shows liabilities which are very high in the earlier years, but you will notice the low green line is never adequate to meet the needs of liability. From the outset, the fund is falling behind. Simply stated, it is not collecting enough money to compensate victims.

One of the arguments being made is we have to replace the court system because it takes so long; there are delays. What is going to happen when this fund doesn't have enough money and hundreds of thousands of Americans who are sick and dying come for compensation?

At best, we will borrow money, adding more cost to the fund dramatically, or we will tell them to wait in line until we have received enough trust fund revenue to pay them. Or, I suppose, as the chairman said yesterday, we will just say we can pay them now, but we will have to pay them less than what we promised in this bill. That appears to be the range of options based on the way we are dealing with this issue.

Take a look at this chart which shows that liabilities will greatly exceed the assets of the trust fund from the very start, and the excess--the red line--continues to build over the years. This is a 50- year period of time. You can see even with the revenue coming in that it never matches the liabilities they anticipate. This chart doesn't even include the new information from the Bates White study, which could mean there is even a greater amount of shortfall in this trust fund.

Let's talk about interest costs for a moment. The fund borrows in its early years because, obviously, all the corporations on the secret list can't come up with all the money they are supposed to produce initially. Some of them will take a period of time. In fact, some of them have told us to forget it, that this bill will end up bankrupting them. So those companies will disappear.

But in the meantime, there are still needy victims and people who would otherwise go to courts for compensation. The fund starts to borrow in its first years to meet the shortfall but realizes barely half the value of future revenue, and the other half has to be used to pay interest.

Senator Hatch was here a few moments ago speaking about attorney's fees and how that is taking money away from victims. Some would argue that without an attorney, many victims would never have their day in court or a chance to succeed in court. What we have here is the fact that we will be paying into this trust fund and almost half of the revenues will be spent on interest and administration. Out of the $140 billion in the trust fund--which may not be enough--almost half of it is going to go to pay creditors, financial institutions, banks, maybe foreign governments. I don't know who will lend money to this trust fund. We will pay out interest to them, and we will have less to pay to the victims.

This was really supposed to be an upfront, no-fault system to help victims with $140 billion compensation over 50 years. It turns out that the real steady winners are creditors of the fund. According to one analysis, as little as 52 percent of the trust fund could be used to pay the claimants and 48 percent for interest, which is almost half of the amount of money during the life of this fund.

Some suggest that we are doing a great favor by creating this trust fund. Well, it is a great favor for sure to credit institutions but to the victims, it is not. As more money is paid out in interest, less is available for the victims.

What the Senator who authored this bill said yesterday is, We will just cut the compensation. That is the way we will make up the difference. For every dollar of interest paid, we pay one dollar less to someone who is dying of mesothelioma. That is how this is being conducted.

The sponsors have put a lot of time in this bill, and it was a Herculean task to try to address something 50 years in the future. I concede to all of that. But shouldn't the people who are pushing for a change have the burden of proving that change is an improvement over status quo? Shouldn't that be the starting point of a debate?

If you want to change the current system, shouldn't you have the burden of establishing that your change is a good one, and that $140 billion is the right figure, rather than to say that Senator Daschle and Senator Frist thought it was a good figure? Shouldn't you have the burden of showing that the input of money into the trust fund from the secret list of corporations and insurance companies is going to be adequate to meet the payouts of the victims? Shouldn't you have the responsibility of showing that $140 billion is going to go to the victims rather than to creditors and financial institutions and interest and administrative costs?

Isn't that the starting point? I think it is. Once they have met that burden of proof, then we can say: All right, we will compare the court system to your trust fund and decide which is the better way to go. But they have not met that burden of proof. They have asked us to accept on faith that this trust fund is going to treat victims fairly on a timely basis. I think many people are concerned about that.

There will be enormous amounts of claims that are expected to flood into this trust fund on day one, and by that time all the cases in court will be shut down if they are not at the jury stage. Let me repeat that important fact. If the litigants are not presenting any evidence in court, all of those cases will be shut down, according to this bill.

You know those victims are going to turn around and say: My husband is dying. My husband has limited activity and can't work. Where do I go now?

They will be told: Come to the trust fund. Come to this $140 billion trust fund.

We can expect a flood of applications in the early stages if this trust fund is created. Will the Department of Labor be able to create this new office and new bureaucracy to manage this flood of claims?

For those of you who have any doubts about the efficiency of government and its ability to respond to millions of people in need, I would suggest the following words: the Medicare prescription drug bill. You know what I mean.

This system which was created 2 years ago by the Senate and the House and signed by the President was supposed to compensate some 40 million Medicare recipients for their prescription drugs. Ask any Senator in this Chamber what they have heard back home. This is a disaster. They had 2 years to be ready. And, unfortunately, this system is fatally flawed. One critic said it is an unsalvageable fiasco and lives are at stake. Senior citizens now wonder if they can get their prescription drugs filled, and for some of those it is critical for them to just keep going on a day-to-day basis.

Now they are being told in this bill to trust us again.

We are going to create a Federal trust fund where hundreds of thousands of claims may come in initially and ask that they be compensated on a timely basis, and they will be told by the Federal Government, trust us, we will give you the money right away.

That is cold comfort for someone who has been sitting for a year or two with medical records and lawyers getting ready to present their case in court. But if they aren't among the fortunate few who have brought their case to a jury or to a judge, presented their evidence, and ended up with a verdict or settlement, then, unfortunately, everything they have done is for naught. They are tossed out of the system.

These victims deserve better than empty promises in this bill. They and the Senate deserve solid information about how this bill will work and remain solvent throughout the entire lifetime. Without such information, the Senate should reject this bill.

Madam President, I yield the floor.

Mr. President, I take strong offense to the statements made by the Senator from Nevada. His accusation that lobbyists are buying their way into the Senate is an outrageous violation of rule XIX, which provides that no Senator in debate shall directly or indirectly, by any form of words, impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.

To say that this bill, which Senator Leahy and I have led for the better part of the last 3 years, is the result of lobbyists ``buying their way into the Senate'' is slanderous. That is a violation of rule XIX. It may be that the Senator from Nevada is used to slander, is used to libel, because that is what he did recently to 33 Senators. Regrettably, nobody has challenged him under rule XIX.

Rule XIX relates to what is done on the floor of the Senate, but in this day and age of debates outside the Senate, of debates on television and radio and in the newspaper, 33 Senators were victimized by the Senator from Nevada, who then scribbled out a form apology letter which was meaningless in the context of what was done. And to talk about lobbyists buying their way onto the Senate floor is an outrageous distortion of what has happened on this bill.

The fact is, over the course of the last 2\1/2\ years, there have been 36 meetings held in my office, attended by people who have an interest in this legislation or their representatives. The AFL-CIO was there. Trial lawyers were there. Representatives of the manufacturers and representatives of the insurers and anybody else who wanted to come in were welcome. I didn't see the Senator from Nevada there once.

He has talked about the bill in a rambling, disconnected way, which proves

only one thing, and that is that he doesn't know anything, really, about the bill. He talks about how the Congressional Budget Office has issued a report saying that it would cost between $120 and $135 billion. Under certain contingencies, it might go to $150 billion-- unlikely. The figure really established was $132 billion.

He talked about the Bates White report which includes people without any exposure. He wasn't in attendance at the hearing we had during which the CBO came in and filed a supplemental report on the adequacy of the $140 billion. That figure is not a concoction of Arlen Specter; that figure was negotiated by Senator Daschle and by Senator Frist because they concluded that figure was the accurate figure to take care of these claims.

When the Senator from Nevada talks about all of the other subjects which could be taken up, he suddenly became interested in LIHEAP, importuning Senators from cold States that LIHEAP should be taken up instead of the asbestos bill. And when he talks about wind power and the debt and every subject virtually under the sun--no real interest in LIHEAP until it is a diversion from the asbestos bill. I have been around here a while, a little longer than the Senator from Nevada, and I never saw so many red herrings at one time. It could fill an entire aquarium.

What he is seeking to do is to obstruct. He has had a lot of practice at that. If he is successful in obstructing this bill from going forward, it will be a great travesty for the American people, for asbestos victims who are now not able to collect because their companies are bankrupt.

Not a word on what the Senator from Nevada had to say about 77 companies which have gone into bankruptcy. He talks about people with mesothelioma, fakes showing some concern while they and their dependents are going penniless because there is nobody to pay their claims. He says one size fits all. The great problem is, the Senator from Nevada doesn't know anything about the bill.

There has been a very carefully structured schedule of payments. When he says the veterans are against it, he is wrong. When he says labor is against it, we have a long list of labor unions. Senator Leahy and I sat down with the leaders of the AFL-CIO and are working out the few remaining objections they have to the bill. When he talks about the managers' package, that is acceptance of amendments. We went through exhaustive and extensive hearings.

In regards to the 36 meetings which have been held in my office, we brought in a distinguished senior Federal judge, Edward R. Becker, who had been the chief judge of the Third Circuit, who accepted my request to mediate. Our meetings started in his chambers in August of 2003, right after the bill was reported out of the Judiciary Committee during the 108th Congress. And we have had, as I said, 36 meetings. I don't think Judge Becker can tell you how many meetings he has held individually because he can't count that high. I certainly can't tell you how many meetings I have had. But I have talked to individual Senators repeatedly, probably some 60 or 70 in this body, and when they hear what the bill is about, they are interested.

The one Senator whom I talked to who had absolutely no interest in the bill was the Senator from Nevada. All he wants to do is to block the bill. When he says this bill is not ready, this bill has been subjected to more analysis and more investigation and more consideration than any legislation I have seen in my 25 years here, and I think it is fair to say more analysis and more consideration than any piece of legislation that has been considered in the history of the U.S. Senate. Let me put it a different way: I challenge the Senator from Nevada or anybody else to cite a piece of legislation which has had more analysis and more consideration.

This bill is more than ready to come to the floor. The difficulty was that when we reported it out last May 26, the business of the Senate was stacked sky high.

And try as he might, the distinguished majority leader, Senator Frist, could not find time to bring it up. He put it on the agenda as the first legislative consideration of the 109th Congress in the second session. That is why we are here.

The arguments--the rambling statements made by the Senator from Nevada--I should not call them arguments. They don't rise to the level of being arguments. He talks about transparency. We know the individual companies in these various groups. We had to subpoena them to get them, but we have subpoenaed them. We do have the records.

When he talks about the lobbyists writing the bill, what an outrageous statement to make in the context of what Judge Becker and I and Senator Leahy and others have done on this bill. To accuse us of being the pawns of the lobbyists is beyond slander, beyond insult. It is beyond outrage that those words should come from the mouth of the leader of the Democrats in this body.

When he talks about silicosis, the rights to sue for silicosis are maintained. It is a very rare situation where someone has both silicosis and an asbestos-related problem. But when you go to court and you make a claim under our tort system, you have to prove, in any case, whether you claim it is silica, or whatever the cause is, that there is not some other cause that is the causative factor of the ailment in question. We had a hearing on silicosis. I am sorry to hear about the family of the Senator from Nevada who suffered from silicosis. We had a very involved hearing on the matter. Do you know who wasn't there? The Senator from Nevada--just as he was AWOL every other time when serious issues were under consideration.

Mr. President, I would like to stay here longer this afternoon. I will put the full text of a statement in the Record, which is an extensive analysis of this bill. Our phenomenal staff has been at work on this matter for months, led by two very fine lawyers, Seema Singh and Harold Kim, and by many on the Judiciary Committee. This statement I recommend to my colleagues to read if they want to understand the bill.

I would not spend too much time reading the Congressional Record on what the Senator from Nevada has had to say because there is no substance to anything he has had to say. When the charges are made here about the lobbyists buying their way into the Senate, Senator Leahy is on the floor and he is the cosponsor of the bill. Senator Kohl and Senator Feinstein voted the bill out of committee. I had heard this ridiculous talk about this being a product of K Street. Well, this Senator is not a product of K Street; neither is Senator Leahy, neither is Senator Feinstein. As far as Senator Kohl is concerned, he could buy and sell K Street himself without any sweat. So to talk about us being in the pocket of the lobbyists, I have not been treated like that since I came to the Senate. In fact, I have never been treated like that. I resent it. I call it a violation of rule XIX.

I hope the Senator from Nevada will abandon these tactics. There is enough objection and controversy and dissent in this body that we don't need personal attacks. I have to excuse myself, Mr. President, because----

Mr. President, I have the floor.

Again you thought wrong. You are in the habit of thinking wrong. I am in mid-sentence, but I am not surprised to be interrupted.

We have other business we are taking care of. I have to soon excuse myself to go to the Judiciary Committee hearing, where we are taking up the question of electronic surveillance, where we have been in session listening to the Attorney General since 9:30 this morning.

When the Judiciary Committee had taken up this bill, we took it up under very difficult circumstances. We started last year with the immediate job of confirming the Attorney General. The Senate went into session on the 109th Congress on a Tuesday, and we had the Attorney General in on Thursday and confirmed him in short order. Then we moved through the bankruptcy bill and the class action bill. Then we tackled the very tough problem of the filibusters, which had delayed the confirmation of circuit judges. We worked through that problem.

Then in the midst of all that, we had a series of hearings on a wide variety of issues: Miller, the New York Times reporter who was kept, and the business about identity theft. We worked through hearings on the tough immigration problem. Then we took up the issue of the confirmation of Chief Justice Roberts, where the staff of the committee worked through the month of August; then we took up the question of the confirmation of Justice Alito. We worked through the months of December and January. While people were globe trotting around the world, we were at work on those matters. And through it all, we have produced a bill that is solid. It is a bill which is designed to compensate thousands of victims of asbestos.

One thing the Senator from Nevada was right about: Mesothelioma is a killer. But the thing he is wrong about is that his position will allow these people to be killed without compensation, because their companies have gone bankrupt, some 77 of them. We have moved to this trust fund after decades and decades of work. I first saw this issue when Senator Gary Hart brought Johns Manville into my office in the early 1980s, 1982 or 1983, and this asbestos problem has defied solution, just defied solution--until Senator Hatch came up with the concept of this trust fund. Then the trust fund was increased in size from about $90 billion to $140 billion.

I didn't hear the Senator from Nevada object when the former Democratic leader, Senator Daschle, agreed with Senator Frist that $140 billion was the accurate figure. I didn't hear him object at all. The only time I hear him object is when there is some chance--and it is an uphill fight; I am prepared to concede that, but I am used to them. I am used to uphill fights. I might even say I enjoy them. But this is the first time this issue has come to the floor of the Senate. It has been languishing for decades, and I talked to no one who denies the basic fact that there is a problem that ought to be addressed. I think even the Senator from Nevada, with his vitriol and slander, implicitly concedes it is a major problem that ought to be addressed.

Now, a motion to proceed takes up the issue as to whether you ought to consider the bill. If the Senator from Nevada has valid amendments, I would like to see them. If he has a better bill, I would like to see that. I would vote for anybody's bill that is better than this one because we have to address the issue. When he talks about the Budget Committee, there are some technical problems here because the money goes through the Department of Labor, so it is a Federal expenditure, but it is not Government money; it is money contributed by the insurers and the manufacturers. There is no impact on the budget.

This bill is ironclad to eliminate any possibility of Federal funding. But if you want to use obstructionist tactics and filibuster-- the Senator from Nevada is good at that--if you want to use 60 votes to try to kill it on a motion to proceed, so be it. I know what the rules are here. But there is no reason not to proceed, and there is every reason to proceed. If you want to use the 60-vote technicality to sustain a budget point of order, you can do that, too. But there is no adverse impact on the Federal budget.

I regret I cannot stay and engage in this colloquy. I do have to get back to the Judiciary Committee.

I ask unanimous consent that the text of my full statement be printed in the Record.

Mr. President, again, this is S. 852, the Fairness in Asbestos Injury Resolution Act of 2005, FAIR Act, the successor to S. 1125 and S. 2290, the FAIR Acts of 2003 and 2004. My colleagues, Senator Frist, Senator Hatch and Senator Leahy, deserve enormous credit for the drafting of these acts and for the development of this legislation. There is a will in the Senate to enact legislation to end the ongoing rash of bankruptcies; to prevent the diversion of resources from those who are truly sick; to preserve jobs and pensions; and to solve the worst litigation crisis in the history of the American judicial system. The Senate plainly wants a more rational asbestos claims system, and I believe that this legislation offers a realistic prospect of accomplishing that result.

This legislation provides substantial assurances of acceptable compensation to asbestos victims and substantial assurances to manufacturers and insurers to resolve, with finality, asbestos claims. Over the past three decades, a solution to the asbestos crisis has eluded Congress and the courts. Some 77 companies have gone bankrupt, thousands of individuals who have been exposed to asbestos have deadly diseases--mesothelioma and other such ailments--and are not being compensated or because of the unfairness of the current system, see little of the awards they do win. A May 10, 2005, report released by the RAND Institute for Civil Justice estimates that nonmalignants make up about 90 percent of the litigation and most are unimpaired. According to RAND, the number of claims continues to rise, with over 730,000 claims filed already and some 200,000 pending. The number of asbestos defendants also has risen sharply, from about 300 in the 1980s, to more than 8,400 today and most are users of the product, not its manufacturers. These companies represent 85 percent of the U.S. economy and nearly every U.S. industry; including automakers, ship builders, textile mills, retailers, insurers, electric utilities and virtually any company involved in manufacturing or construction in the last 30 years.

Asbestos leaves many victims in its wake. First and foremost, the sick and their families have suffered and do not receive fair compensation in the tort system. Asbestos victims filing claims receive an average of 42 cents for every $1 spent on asbestos litigation. Today, 31 cents of every $1 have gone to defense costs, and 27 cents have gone to plaintiffs' attorneys and other related costs.

The flawed asbestos litigation system not only hurts the sick and their chances of receiving fair compensation but also claims other victims. These include employees, retirees and shareholders of affected companies whose jobs, savings and retirement plans are jeopardized by the tide of asbestos cases. With asbestos litigation affecting so many companies, this also impacts the overall economy, including jobs, pensions, stock prices, tax revenues and insurance costs. According to a 2002 study by Nobel laureate Joseph Stiglitz, asbestos bankruptcies have cost nearly 60,000 workers their jobs and $200 million in lost wages. Employees' retirement funds have shrunken by 25 percent.

In July 2003, the Judiciary Committee voted out S. 1125, a bill with numerous problems, largely along party lines, 10 yeas, 8 nays, 1 pass, in an effort to move the legislation. S. 1125 created the basic structure of the legislation, and made huge strides in working out the medical criteria. However, the bill foundered on other issues. In August, at my request, Judge Edward R. Becker, a Federal judge for 34 years, convened in his chambers in Philadelphia the so-called stakeholders; namely, manufacturers, labor, AFL-CIO, insurers and trial lawyers--to determine if some common ground could be found. Until the preceding May, Judge Becker had been the Chief Judge of the Third Circuit Court of Appeals and wrote the opinion in the asbestos class action suit that was affirmed by the U.S. Supreme Court.

From September 2003 through January 2005, there were some 36 stakeholder meetings held in my conference room, with Judge Becker as a pro-bono mediator, usually attended by 25 to 40 representatives with sometimes over 75 people present. I have also met 61 times since January 2005 with various officials from the administration, members of the Senate Judiciary Committee and their staffs, the Senate leadership and other Senators all in an effort to move this bill forward. Judge Becker and I have sought an equitable bill which took into account, to the maximum extent possible, the concerns of the stakeholders and to get their input on drafting of the bill. After analysis and deliberation, we found we could accommodate many of the competing interests.

This process commenced with the blessing of then-Chairman Hatch and Ranking Member Leahy of the Judiciary Committee. This extended process allowed the stakeholders an extraordinary ``hearing'' process and really amounted to the longest ``mark-up'' in Senate history although not in the customary framework. We have had the

cooperation of many Senators. Senators Hatch and Leahy have had representatives at all the meetings. The majority leader, Senator Hatch, and Senator Leahy have addressed this ``working group'' at our meetings. Senator Hatch's and Senator Leahy's representatives have been active participants at every meeting, as well as the members of the staffs of Senators Baucus, Biden, Brownback, Burns, Carper, Chafee, Chambliss, Coburn, Cornyn, Craig, DeWine, Dodd, Durbin, Feingold, Feinstein, Graham, Grassley, Hagel, Kennedy, Kohl, Kyl, Landrieu, Levin, Lincoln, Murray, Ben Nelson, Pryor, Schumer, Sessions, Snowe, Stabenow, and Voinovich.

In 1997, the Supreme Court commented for the first time on the growing asbestos problem by stating, in the context of holding that asbestos litigation was not susceptible to class action treatment:

The most objectionable aspects of this asbestos litigation

can be briefly summarized: dockets in both federal and state

courts continue to grow; long delays are routine; trials are

too long; the same issues are litigated over and over;

transaction costs exceed the victims' recovery by nearly two

to one; exhaustion of assets threatens and distorts the

process; and future claimants may lose altogether. . . .

In the ensuing years with asbestos litigation increasingly choking the courts, the Supreme Court has repeatedly called upon Congress to act through national legislation:

In one case, the Court observed ``the elephantine mass of asbestos cases . . . defies customary judicial administration and calls for national legislation.''

A concurrence in the same decision found that the asbestos crisis ``cries out for a legislative solution.''

As recently as 2003, the Supreme Court reminded us that it had ``recognized the danger that no compensation will be available for those with severe injuries caused by asbestos . . . It is only a matter of time before inability to pay for real illness comes to pass.''

Even though he dissented from the majority holding in that 2003 case, Justice Breyer observed: ``Members of this Court have indicated that Congress should enact legislation to help resolve the asbestos problem. Congress has not responded.''

The FAIR Act of 2005 is a response to the Supreme Court's many calls for national legislation to fix a broken asbestos litigation system. It is the product of these extensive negotiations among the key stakeholders. Throughout this process, the stakeholders reached important compromises that are now embodied in S. 852. The Judiciary Committee also spent a month marking up the bill last May during which time the committee accepted 75 amendments from both Republican and Democratic members. After extensive deliberation, the committee reported the bill favorably on May 26, 2005 on a strong bipartisan vote of 13-5.

The concept of a trust fund is an outstanding idea. Senator Hatch deserves great credit for moving the legislation in the direction of a trust fund with a schedule of payments analogous to workers' compensation so the cases would not have to go through the litigation process. Under this proposal, the Federal Government would establish a national trust fund privately financed by asbestos defendant companies and insurers. No taxpayer money would be involved. Asbestos victims would simply submit their claims to the fund. Claimants would be fairly compensated if they meet medical criteria for asbestos induced illnesses and show past asbestos exposure. The trust fund would guarantee compensation for impaired victims.

Through a series of meetings with Judge Becker, we have wrestled with and have been able to solve a number of very complex issues. The size of the trust fund was always a principal issue of dispute, starting at $108 billion. The manufacturers/insurers raised their offer to $140 billion. In October 2004, Majority Leader Frist and then-Democratic Leader Daschle agreed to $140 billion. When Senator Frist and Senator Daschle, in an adversarial context, agreed to the adequacy of the $140 billion figure, it is difficult to exceed it even though the AFL-CIO did not contemporaneously agree.

It is not possible to say definitely what figure would be adequate because it depends on the uncertainty of how many claims will be filed. There is support for the adequacy of the $140 billion figure from reputable projections, including the Congressional Budget Office cost estimate.

Since this bill was discharged from this committee in May, new reports analyzing the bill have been published--such as the CBO report and the Bates White report. In late August 2005, the non-partisan Congressional Budget Office issued its analysis of the bill. In its report, the CBO predicted that asbestos claims and award values could fall anywhere between $120 to $150 billion, and as a middle of the road assessment, concluded that the fund would likely payout $132 billion over the life of the fund. It was reassuring to see CBO project $132 billion as adequate to pay the claims in a contest where there are so many variables that do not lend themselves to precise projections or predictions. Even in the range of that uncertainty, the CBO has estimated that claims could be as low as $120 billion and no higher than $150 billion so that our legislation with $140 billion is reasonable and realistically calculated to cover the claims, especially in the context with the provisions for review of medical criteria and award values to reduce expenditures or increase contributions in the trust fund.

In September 2005, the analysis by the Bates White firm concluded the proposed fund would face claims of between $301 billion and $561 billion, projecting that claimants with lung and other cancers, would inundate the fund. A hearing on this issue was held by the Judiciary Committee on November 17, 2005. During the hearing we heard testimony on both sides of the issue. The Bates White study proved to be fatally flawed for reasons detailed at that hearing. Thus, in December 2005, CBO confirmed its original cost estimate, reaffirming that $140 billion would be sufficient to cover claims filed for compensation under the trust fund.

The real safety valve, if the fund is unable to pay claims, is for the injured to have the ability to go back to court if the system is not operational and able to pay exigent health claims within 9 months after enactment, and all other valid claims within 24 months of enactment. Upon reversion to the tort system, the bill provides that claimants may file suits either in Federal Court or State Court in the State in which the plaintiff resides or State courts where the asbestos exposure took place. Forum shopping has been eliminated.

The claimants object to any hiatus between access to the courts and an operating system; but the reality is that court delays are customarily longer than the delay structured in this system. The defendants and insurers object saying it is too short a time frame, but they have the power to expedite the process by promptly paying their assessments. Leaders of the Manville Trust and the RAND Institute study provide a solid factual basis that the volume of claims can be efficiently administered by the fund administrator using a technique developed by the Manville Trust and other similar claims facilities that have processed asbestos claims for many years. The Manville Trust has processed as many as 150,000 claims per year. The number of exigent claims anticipated in the first 9 months of the fund is vastly smaller and even the total number of claims anticipated in the first 24 months is significantly less that which the Manville Trust has handled in a comparable period. Additionally, the bill provides the administrator with the option to contract out the exigent claims to a claims facility for expedited processing under the standards of the fund on a voluntary basis. The short time frame will prod the system to become operative at an early date. The bill sends the claims back to the fund as soon as it is certified operational with a credit for any payment of the scheduled amount.

Similarly, the defendants seek a commitment that the legislation will bar return to the courts for at least 7\1/2\ years. It is hard to see how the substantial fund would be expended in a lesser period. Here again, the legislation gives the defendant substantial assurances that the system will last at least 7\1/2\ years. If it collapses, the claimants should not bear the burden, but should reclaim their constitutional right to a jury trial. However, sunset

cannot take place before there is an extensive and rigorous ``program review.'' This would give the administrator an opportunity to refashion the program to compensate for any major shortcomings.

The claimants sought $60 billion in startup contributions within 5 years and the defendants countered with a maximum of $40 billion. The fund's borrowing power should enable it to borrow at least the balance of $20 billion because of the defendants continuing substantial financial commitments. Here again, the bill meets the standard of substantial assurances that $60 billion will be in hand within the first 5 years.

A key issue for the claimant has been that of workers' compensation subrogation. This issue is important because the value of an award to the claimant depends on whether the claimant may have to pay a substantial amount of it to others. While the precise picture is different from State to State, in general, workers' compensation laws give employers, and their insurance carriers, subrogation rights against third-party tortfeasors and a lien on the injured employee's recovery from a third-part tortfeasor. This is a big issue because workers' compensation covers the employees' medical costs.

We closely examined and considered including a proposal that would have called for a so-called workers' compensation ``holiday.'' Such a proposal would have provided for a ``holiday'' from worker's compensation payments during the period of receipt of payments from trust fund except to the extent that the compensation would exceed them, with a waiver of past and future subrogation. However, as each State has different workers' compensation laws, we concluded that such a proposal could go beyond the practice in a number of States, leaving some claimants with a significantly reduced award.

Furthermore, claimants assert, with a substantial basis that the award values in the bill were designed with the understanding that there would be no liens or rights of subrogation against the claimants based on workers' compensation awards and health insurance payments.

Therefore, after substantial analysis, we have determined that to be fair to victims, claimants should be allowed to retain both their fund awards and workers' compensation payments. It is important that the bill must extinguish any liens or rights of subrogation that other parties might assert against the claimants based on workers' compensation awards and health insurance payments.

Another key issue for the claimants has been the legislation's treatment of asbestos disease claims under the Federal Employers' Liability Act, FELA, the workers' compensation system for rail workers. Earlier versions of the bill would have preempted FELA claims for asbestos-related diseases, limiting victim's recovery to compensation under a national asbestos trust fund. Rail labor asserts that such an approach is unfair to rail workers, since for all other workers, the bill maintains workers' compensation rights. Alternative approaches to dealing with the FELA issue have been proposed, including providing for a supplemental payment, in addition to awards under the bill, to provide compensation to rail workers for work-related asbestos diseases. The AFL-CIO's affiliates which represent workers in the rail industry have been engaged in discussions with industry on this issue, and a fair resolution has been reached. The bill provides for a principled compromise that would allow for a special adjustment for railroad workers so that the compensation award would be structured in a manner that would allow for corollary benefits--similar benefits for workers under FELA and workers compensation. It also clarifies that this legislation intends to deal solely with asbestos claims and does not in any manner impact FELA.

In these marathon discussions, plus four committee hearings on the issue in 2005, we understand the deep concerns expressed by the stakeholder representatives on more concessions for their clients. On the state of the 20-year record, this choice is not between this bill and one which would give their clients more concessions. The choice is between this bill and the continuation of the present chaotic system which leaves uncompensated thousands of victims suffering from deadly diseases and litigation driving more companies into bankruptcy.

We considered at length the manufacturers/insurers objections to medical screening, but concluded such a provision was necessary as an offset to the reduced role of claimant's attorney. With the previous potential of a substantial contingent fee, claimants' attorneys identified those damaged by exposure to asbestos. Absent that motivation, with the attorneys' fees capped at 5 percent, it is reasonable to have routine examinations for people who would not be expected to go for such checkups on their own; so as a matter of basic fairness, such screening is provided. By establishing a program with rigorous standards, as we have done in this bill, unmeritorious claims can be avoided with the fair determination of those entitled to compensation under the statutory standard.

The legislation has closely examined the issues of so-called ``leakage'' in the fund and has provided that all asbestos claims pending on the date of enactment, except for non-consolidated cases actually on trial, and except cases subject to a verdict or final order or final judgment, will be brought into the asbestos trust fund. Furthermore, only written settlement agreements, executed prior to date of enactment, between a defendant and a specifically identifiable plaintiff will be preserved outside of the fund; the settlement agreement must contain an express obligation by the settling defendant to make a future monetary payment to the individual plaintiff, but gives the plaintiff 30 days to fulfill all conditions of the settlement agreement.

We have also included in the legislation language designed to ensure prompt judicial review of a variety of regulatory actions and to ensure that any constitutional uncertainties with regard to the legislation are resolved as quickly as possible. Specifically, it provides that any action challenging the constitutionality of any provision of the act must be brought in the United States District Court for the District of Columbia. The bill also authorizes direct appeal to the Supreme Court on an expedited basis. An action under this section is to be filed within 60 days after the date of enactment or 60 days after the final action of the administrator or the commission giving rise to the action, whichever is later. The District Court and Supreme Court are required to expedite to the greatest possible extent the disposition of the action and appeal.

Claimants also expressed the need for assurances on the manufacturers payment into the fund. Therefore, S. 852 requires enhanced ``transparency'' of the payments by the defendants and insurers into the fund. The proposal provides that 20 days after the end of such 60- day period, the administrator shall publish in the Federal Register a list of such submissions, including the name of such persons or ultimate parents and the likely tier to which such persons or affiliated groups may be assigned. After publication of such list, any person may submit to the administrator information on the identity of any other person that may have obligations under the fund. In addition, there are enhanced notice and disclosure requirements included in the legislation. It also provides that within 60 days after the date of enactment, any person who, acting in good faith, has knowledge that such person or such person's affiliated group would result in placement in the top tiers, shall submit to the administrator either the name of such person or such person's ultimate parent; and the likely tier to which such person or affiliated group may be assigned under this act.

As I have mentioned previously, this legislation deals with a number of very complex issues, one of them being that of ``mixed-dust.'' We held a hearing in the Judiciary Committee on this issue on February 2, 2005. The manufacturers fear that many asbestos claims will be ``repackaged'' as silica claims in the tort system. Evidence adduced at the hearing reflects that this has been happening in a number of jurisdictions. If a claim is due to asbestos exposure at all, the program should be the exclusive means of compensation. The stakeholders agree that this is an asbestos bill, designed to dispose of all asbestos claims but that workers with

genuine silica exposure disease ought to be able to pursue their claims in the tort system. The problem is that with those claims where the point of demarcation is unclear. Silica/asbestos defendants are worried that they will find themselves in court with the burden of proving that the plaintiffs injury is due to asbestos rather than silica. S. 852 makes clear that pure silica claims are not preempted, but claims involving asbestos disease are preempted. A claimant must provide rigorous medical evidence establishing by a preponderance of evidence that their functional impairment was caused by exposure to silica, and asbestos exposure was not a significant contributing factor. Although this does impose the burden on the claimant, this is no different than the burden the plaintiff or any party advancing a position has in producing medical evidence in any case that the physician will state that a disease was caused by some condition or exposure or that it was not caused by some condition or exposure. In addition, the testimony given at the February hearing on the issue established that asbestos and silica are easily distinguishable on x ray and that asbestos and silica rarely are found in the same patient.

Another very complicated issue I have addressed in my legislation, at the request of the claimants, is that of providing for award adjustments for exceptional mesothelioma cases based on age and the number of dependents of the claimant. For example, a mesothelioma victim who is 40 years old with two children will be able to get an upwards adjustment in his award amount as compared to a 80 years mesothelioma victim with no dependents. The impact of such adjustments to the fund will remain revenue-neutral.

There has been a strong concern that this bill should not become a ``smokers'' bill rather than an asbestos bill--that thousands of smokers will claim to be in the level VII compensation tier in order to get money even if asbestos had nothing to do with their disease. After long discussions with the various sides, it has been decided to remove level VII cases from the fund, cases which had the potential to bring down the entire fund.

There has also been a concern with the legitimacy of the level VI compensation tier. We requested that the Institute of Medicine, IOM, commence a study to assess the medical evidence so as to determine whether colorectal, laryngeal, esophageal, pharyngeal or stomach cancer can be caused by asbestos exposure. The IOM will conclude its study of level VI causation by April 2006. With a 270-day stay on exigent cases and 2-year stay of all other cases, this has the practical impact of the IOM study results being conclusive on inclusion or exclusion of level VI prior to any claim being filed.

Therefore, the bill retains the level VI tier pending the IOM study conclusions but continues to provide extensive safeguards to the fund against those individuals with these diseases making claims against the Asbestos Trust Fund. Any level VI claim must be based on findings by a board-certified pathologist accompanied by evidence of a bilateral asbestos-related nonmalignant disease; evidence of 15 or more weighted years of substantial occupations exposure to asbestos; and supporting medical documentation establishing asbestos exposure as a contributing factor in causing the cancer in question. The claim must also be referred to a physicians panel for a determination that it is more probable than not that asbestos exposure was a substantial contributing factor in causing the other cancer in question. Further, the bill mandates that the physicians panel review the claimants smoking history as opposed to ``claimant may request.''

The FAIR Act is a complicated bill, but one that is both integrated and comprehensive and reflective of a remarkable will to enact legislation. If this bill is rejected, I do not see the agenda of this Senate Judiciary Committee revisiting the issue. I cannot conceive of a more strenuous effort being directed to this subject that has been done over the past 2\1/2\ years. This is the last best chance.

I remain confident that during debate on the Senate floor, we can forge and enact a bill that is fair to the claimants and to business and that will put an end once and for all to this nightmare chapter in American legal, economic and social history. If we can summon the legislative will in a bipartisan spirit, it can be done. Anything less would preserve the injustices of a system that even the highest Court of this country has called upon the Congress to fix.

Mr. President, very briefly, my feelings are not hurt. My feelings are an irrelevancy. If they were relevant, they still have not been hurt. My concern is for the feelings of the people who have been victimized by asbestos and have no one from which to collect.

I don't make any point about having done a lot of work on this bill. I don't do piecework around here. I do work on a lot of bills. I do not personalize it at all. My thrust is strictly on the merits, on a way to fairly compensate victims, on a way to stop more companies from going into bankruptcy, on a way to stop the hemorrhaging of job losses, and a way to stimulate the economy. I make the submission of this bill strictly on the merits.

I compliment Senator Leahy on what he has done on this bill, as well as his staff, in coming together and structuring the bill, again, in meeting after meeting and in discussion after discussion. What we asked our colleagues to do is to take a look at the merits. Don't be concerned about the work that we put into it, don't be concerned about our feelings; be concerned about the problem and about our suggested solution and about our openness to make changes. If anybody has amendments, we will consider them. If somebody has a better bill, we will consider that.

I yield the floor.

Mr. President, I thank the chairman of the committee. I note that the ranking member is here also. If he would like to go ahead of me, I have no problem with that.

I thank the Senator very much for that.

Mr. President, let me give you at least my bottom line of this bill. Up to 2004, 74 American companies had been bankrupted. Salaries have been diminished for a large number of people. More people are thrown into the unemployment market as a product of bankruptcy. Victims receive less than 50 percent on the settlement dollar. Those are facts. It is deeply disturbing to me. I deeply believe that a no-fault fund, which has a medical board that evaluates the medical condition of an individual and automatically grants that individual an amount of money, is a much sounder way to go.

Now, clearly, this is complicated legislation and there are difficult and technical issues involved. But a lot of misinformation has plagued the asbestos debate, and it continues to be repeated. I cannot say we have a perfect bill, but we have tried, and tried very hard. This has not been a take-it-or-leave-it bill. The chairman and the ranking member have been open to suggestions. They have been open to requests for amendments. There will be a substitute amendment that further refines the bill.

Today, I want to discuss the concerns raised by those who oppose the bill and provide what I hope are important points.

On Thursday, one Senator argued:

It really comes down to a very basic question--the question

of whether or not this bill has been carefully crafted,

whether or not it contains enough money in the trust fund to

compensate the hundreds of thousands of asbestos victims that

will have to count on it.

Let me address the beginning of that statement, Mr. President. I cannot think of any other bill where more

time, more effort, and more man-hours have been committed to thoroughly understanding and trying to address all of the complex issues, and even to respond to the hypothetical issues that might potentially come up. The drafters of this legislation have worked for literally thousands of hours through the process of dozens of meetings over the past six years. The Judiciary Committee has held at least 8 hearings on the asbestos bill--4 just in the past year--and has heard testimony from 57 witnesses. We have met with experts from all sides who currently evaluate asbestos claims and make statistical projections for companies, for victims, and the courts. We met with doctors, victims, corporate CEOs, and general counsels. We met with trial lawyers, insurance representatives, and individuals who work for asbestos bankruptcy trusts.

I recognize that there are real concerns from the opponents of the bill. Some people are unsatisfied with some of the compromises that have been incorporated. But to assert that the legislation was not carefully drafted is one argument that has no basis in reality.

Now for the second part of the argument. Again, it is important to remember the history. Through this extensive consultation process, it became clear that there was an expected range of claims that could come into the fund. From this, several different experts, including Goldman Sachs, calculated the amount of funding necessary to cover the claims' values that the bill provided and the number of claims that the fund would pay based on the range of claims.

We learned that the amount necessary to create a national trust was between $90 billion and $155 billion. The legislation now on the floor has funding of $140 billion--clearly, on the high side of the range of what the technical experts expect.

I also think it is important to remember that previous versions of the asbestos bill had significantly less guaranteed contributions. S. 1125 provided $108 billion, with a $45 billion contingent fund. S. 2290 provided $104 billion, with a $10 billion contingent fund. However, each of these bills assumed that part of the money to pay claims would be collected through interest on savings. They did not meet the full funding through guaranteed contributions by businesses and insurers as this bill does. That is a significant difference.

The underlying assumption of the prior two bills was that the amount of money being paid into the trust would be more than sufficient to pay claims and, instead, there would be an excess that the administrator could invest to help build the trust fund's assets. So the amount of money being paid into the fund was much less than $108 billion and $104 billion. In addition, neither of those bills contained provisions to guarantee that the remaining companies would be required to make up any potential shortfall. Yet the bill on the floor of the Senate today is over $30 billion above S. 1125 and S. 2290 in guaranteed contributions, with no contingency funding.

In addition, when the CBO was asked to evaluate how much money the fund would need to pay claims, it projected that ``the proposed fund would be presented with valid claims worth $120 billion to $150 billion.'' This is the CBO language:

CBO expects that the value of valid claims likely to be

submitted to the fund over the next 50 years could be between

$120 billion and $150 billion, not including possible

financing (debt service costs) costs and administrative

expenses.

Again, $140 billion is well within the expected range. I think it is also important to note that throughout the process, the medical criteria has been tightened. I don't believe anybody really speaks to this. One category of claims--individuals who had lung cancer but no underlying asbestos markers--has been eliminated from the bill. An Institute of Medicine study has been added to the legislation that requires an evaluation of the link between asbestos exposure and cancer, other than lung cancer. If that link cannot be established by the IOM, then those claims will not receive compensation. With these modifications, the number of claims coming into the trust will be substantially reduced.

Finally, many protections have been put in place that ensure that if, in the long run, the trust does not have sufficient funding to cover all claims, individuals will be returned to the tort system--the very solution opponents are advocating now. So if the trust were to run out of money, the individual would go back to the tort system.

Some opponents also argue that passage of this act would lead to federalizing the responsibility for asbestos claims. We just heard this in the Democratic Caucus. It is this argument that is being used to make the case for a budget point of order against the bill. Some opponents have argued that the trust creates a new, albeit capped, entitlement for claimants. However, this statement is very misleading.

According to the Congressional Research Service, entitlement programs are a form of mandatory spending which require the payment of benefits to persons if specific criteria established in the authorized law are met. If one only looked at the first part of the definition of entitlement, this concern may be understood. However, CRS further states that entitlements are not subject to discretionary appropriation from Congress. Instead, they are subject to mandatory appropriations. Entitlement payments are legal obligations of the Federal Government, and beneficiaries can sue to compel full payment. This is not the case here.

Let me state that again. This is not the case here. The trust fund created by this legislation will be privately funded. The money collected for the trust comes from businesses and insurance companies. It does not come from the U.S. Treasury. While some opponents acknowledge that the Federal Government must play a role in the trust fund for it to be classified as an entitlement, they inaccurately conclude that if an individual satisfies the medical criteria and filing deadlines, then he or she is entitled to compensation from the Federal Government. This is not true.

Although the program will be housed in the Department of Labor, the bill ensures that all expenses, including administrative expenses, are paid by the moneys collected from businesses and insurers. In addition, as an extra protection, it is expressly stated several times throughout the bill that the United States, or the U.S. Treasury, will in no way be required to satisfy any claim or any costs if the amount in the trust is inadequate.

This bill expressly provides:

Repayment of moneys borrowed by the administrator is

limited solely to amounts available in the fund.

It also states that nothing in this act shall be construed to create any obligation of funding from the U.S. Government, including any borrowing authorized. Read section 406(b). This is what the opponents say is not there. This is the face of the bill. It is there:

Nothing in this act shall be construed to create an

obligation of funding from the United States Government . . .

or obligate the United States Government to pay any award or

part of an award, if amounts in the fund are inadequate.

I don't know what better guarantee there can be. If someone can suggest one, I am sure the chairman and the ranking member, and certainly myself, would agree to add it to the bill. With these explicit statements throughout the bill, it is abundantly clear that this legislation will not be a burden on the U.S. Treasury.

While Congress can obviously pass any law it so chooses in the future, this bill specifically states multiple times in the text that taxpayers and the U.S. Treasury will in no way be required to cover any shortfall, any administrative costs, any debt or interest costs, or any costs incurred by the trust fund. Therefore, the only way taxpayers will be called upon to subsidize this legislation is if a future Congress chooses to pass, and the President signs, new legislation which would create such an obligation. This seems to me very unrealistic and highly unlikely. But even if it were to come to pass, we should not defeat this bill because of what some other Congress and some other President may or may not do at some time in the future.

Opponents also argue that the Federal Government's liability is likely to arise through the debt service. They argue that the administrator could borrow beyond the fund's ability to repay the Treasury.

I wish to respond to that. This statement ignores the plain text of the bill.

The administrator's ability to borrow funds from the Federal Financing Bank is only available for the first 5 years. Section 221 states:

The administrator may borrow from the Federal Financing

Bank in accordance with section 6 of the Federal Financing

Bank Act of 1973 as needed for performance of the

Administrator's duties under this Act for the first 5 years.

So for the first 5 years, there can be some borrowing. How is that borrowing limited and how is the loan paid back? This same section specifically limits the borrowing capacity of the administrator so that he or she may not overextend the fund's assets by borrowing beyond what the trust fund will be able to repay.

Again, section 221 states:

The maximum amount that may be borrowed under this

subsection at any given time is the amount that, taking into

account all payment obligations related to all previous

amounts borrowed in accordance with this subsection and all

committed obligations to the fund at the time of borrowing,

can be repaid in full with interest in a timely fashion from

the available assets of the fund as of the time of borrowing,

and all amounts expected to be paid by participants during

the subsequent 10 years.

So it requires the administrator to look at what he or she could potentially repay and what contributions are still outstanding. It is hard to believe that any private lending institution would risk lending money to the trust fund which it could not clearly repay in the future. However, even if some private institution decided to take that risk, the bill specifically prohibits the administrator from entering into such a financially risky transaction.

As I just read, the explicit language in the bill limits the administrator's borrowing capacity to an amount that can be repaid in full with interest from the available assets of the fund as of the time of borrowing and all amounts expected to be paid by participants during the subsequent 10 years.

Finally, those who support the budget point of order argue that collection of the contributions by the businesses and insurers could fail to materialize, leaving the U.S. taxpayer on the hook to cover the costs, and we should look at that. We should look at it very carefully. But this ignores explicit provisions contained in the legislation.

Senator Leahy and I fought hard to ensure that the payment obligations included in the bill were enforceable and guaranteed.

First, the bill gives the administrator enforcement authority to compel payment by the companies, both defendant businesses and insurers alike.

Let me quote section 223. It provides:

If any participant fails to make any payment in the amount

of, and according to, the schedule under this Act or as

prescribed by the Administrator after demand and a 30-day

opportunity to cure the default, there shall be a lien--

Not there may be a lien; there shall be a lien, mandatory language--

for the amount of the delinquent payment (including interest)

upon all property and rights to property, whether real or

personal, belonging to such participant.

The participants of the fund are liable for the maintenance of the fund. I don't see how it could be any clearer.

The chairman of the committee who is the author of this bill is in the Chamber. If someone has an amendment and comes to the chairman and says: Look, we think there is an oversight here or there, it could be tightened up by doing X or Y, I am sure this chairman will listen. But the language is very specific: If any participant fails to make any payment in the amount in the schedule under this act or as prescribed by the administrator after a demand and 30 days to pony up to cure the default, there shall be a lien for the amount of the payment, including interest, upon all property and rights to property. That includes every big business, every big insurance company, everyone that is in this fund, and it is only within that initial period that the administrator can, in fact, borrow. So how people come to the conclusion that the Government is on the hook for $40 billion I will never understand. If the company refuses to pay or fails to pay, the administrator must get a lien from a court on the company's assets in order to compel payment.

Secondly, the bill ensures that if any one company cannot pay its obligation under the trust fund--and this is important--if any one company can't pay its obligation under the trust fund, the other companies must shoulder the cost.

Specifically, section 204(h)--please read it, opposition--Guaranteed Payment Surcharge, states that if the required contribution does not come in,

The administrator shall assess a guaranteed payment

surcharge.

Here it is, section 204(h)(3):

To the extent it is insufficient to satisfy the required

minimum aggregate annual payment, the administrator--

Not may--

shall assess a guaranteed payment surcharge.

So the administrator shall collect any shortfall in contributions from other defendant companies. This legislation contains specific language to require that companies pay and that if the enforcement mechanism should fail for any reason, the the money still comes into the trust through payments from other companies.

With explicit language protecting the American taxpayer and the U.S. Treasury from ever having to contribute to the fund, with explicit language limiting the administrator's borrowing authority, and with explicit language ensuring that the anticipated contributions are made, this legislation makes it abundantly clear that in no way, shape, or form can the trust harm the Federal budget.

Opponents of the bill argue that those of us who support the bill have ``significantly distort[ed] CBO's conclusions'' and, at the same time, they assert that CBO ``likely understates'' the amount of money needed for the trust. They argue that because CBO uses qualifiers in their estimates such as acknowledging uncertainties in calculating the number of claims and the amounts to be paid, that one must draw the conclusion that CBO actually believes the cost to be much higher than that which is contained in their paper. Yet time and time again, when CBO has been asked to review their estimate and make changes based on new information, including the rather notorious Bates White study, they have declined to make changes. I was in that hearing; I heard the Director of CBO decline to make changes directly after the Bates White testimony. With each request, CBO has refused to alter its estimate of the projected costs. This is what they said in a letter to Chairman Specter dated December 19, 2005:

The Bates White Report contains no new information that

would cause CBO to revise its cost estimate.

The size of the fund is based on the strongest statistical data and economic models available. Now, that is the best that is out there. That is the state of the art. Some can say it isn't enough. I can't counter that. All I know is that the committee sought the best, the committee sought the most responsible.

As I said on the floor previously, a leading actuary with Tillinghast-Towers Perrin, an actuarial firm for the Manville Trust, testified before the committee that ``$108 billion appears to be more than adequate,'' and the RAND Institute estimates the future remaining costs of asbestos-related loss and expense at $130 billion. In addition, the new projections calculated by Tillinghast also confirm that the contributions to the asbestos trust fund should be sufficient.

While opponents argue that the latest Tillinghast studies support their argument that there is inadequate funding, a closer analysis reveals that the new Tillinghast projections are actually in line with the projections used to calculate the money necessary to pay claims under the bill. Let me tell you how that happens.

The new Tillinghast claims projections include claims for foreign exposures as well as Manville's level VI cancers. Both of these categories of claimants are ineligible for compensation under this bill's medical criteria. When these changes are accounted for and the Tillinghast numbers are adjusted, their new projections fall squarely within the range that the asbestos trust fund is based on, and the adjusted Tillinghast numbers are actually less than CBO's projections.

In addition, by using a no-fault administrative system, the fund will significantly reduce the substantial transaction costs of the current tort system, costs which almost all experts agree consume more than half of the total amount paid out for asbestos claims.

Remember at the beginning I said that one of the most startling things to me was to realize what happens with settlements, what happens to the dollars of settlements. The fact is that 61 percent of all of the settlement monies go for defendant costs, go for plaintiff costs, go for court costs, go for legal fees. Sixty-one percent. Sixty-one percent, then, of any tort court sum goes not to the victim but to lawyers and to tort costs.

In addition, by using a no-fault administrative system, the fund significantly reduces the substantial transaction costs of the current tort system: (A) you don't need a lawyer; and (B) if you want to come in with a lawyer, that lawyer is limited to a 5-percent fee--not 30, 40, 50, 60, or 70 percent of a recovery, but 5 percent.

According to the RAND Institute, 58 percent of the money spent on asbestos claims goes toward attorney's fees--31 percent to defense attorneys, and 27 percent to plaintiff attorneys.

I urge everyone to read the RAND Institute's recent study. It is 168 pages. It describes what is happening in the tort system, and it is an independent, very good analysis.

The bottom line: The asbestos bill needs less money to pay victims fair compensation since it eliminates these transaction costs which drain money away from the individual.

This bill as amended obligates defendant and insurer participants to contribute $136 billion--that is a lot of money--$136 billion to the fund, and at least $4 billion more would be contributed from confirmed bankruptcy and other asbestos compensation trust funds. In fact, CBO recently estimated that the amount to be contributed by bankruptcy trusts will likely be around $8 billion. Here is what CBO said:

The value of cash and financial assets of the asbestos

bankruptcy trust funds would be $7.5 billion in 2006 and $8.1

billion when liquidated.

As I stated previously, if the projections are wrong and the amount of money available proves to be insufficient in the long run, victims will be allowed to return to the courts. With this safety net, the legislation ensures that no one is left without an avenue of recourse.

Some people have said there is a lack of certainty. A lack of certainty is not unusual when projecting what might occur in the future for the Federal budget or for future programs. I do not believe that uncertainty or ambiguity necessarily leads to the conclusion that the trust fund will require more funding. But I would hope opponents would view the ambiguities for what they are--an acknowledgment that no one can predict the future with 100 percent certainty, and the best anyone can do is make projections using sound statistical analyses, which this committee's bill has attempted to do.

We don't know how many people have been exposed to asbestos and, of course, who will develop a disease--nor can we possibly know. However, that should not mean that we do nothing, that we let the present system, which we know is not good, prevail. That does not mean that the analyses and projections that have been done are useless, not valuable, or inaccurate. Instead, we have to find the best projections available, the most sound, the ones that are based on sound calculation and real- world experience of other trusts. That is what this legislation does.

Another argument made by opponents is that there will be additional costs related to the debt service that could overwhelm the trust. Some have declared:

Debt service contributes greatly to the trust fund's

insolvency, underlining the severe mismatch between the

timing of payments into the fund.

Opponents have said that this conclusion is based on the argument that there will be a flood of claims at the start of the trust. However, this concern has also been examined and addressed through the process of drafting this bill. The so-called upfront funding has been significantly increased to the point where the trust fund now will have $42 billion in the first 5 years to pay claims. Under S. 2290--the old bill--the administrator would have collected up to $19 billion during the first 3 years and only $29 billion in the first 5 years. The difference is $15 billion has been added to the upfront funding of this bill. That is a 30-percent increase in the startup funding from what was provided in the bill last Congress.

In addition, the Judiciary Committee adopted an amendment to speed up the initial contributions by insurers, defendant companies, and bankruptcy trusts so that the administrator can pay claims quickly.

Section 204 requires the defendant companies to pay their initial payment within 90 days from the date of the enactment, and we are very serious about that. Section 212 requires the insurers to make their first payment within the same time line. And Section 402 requires the bankruptcy trusts to also make their first payment within the first 90 days.

Here is what the bill says:

Each defendant participant shall file, not later than 90

days; insurer participants, not later than 90 days.

This is bill language.

The assets in any trust established to provide compensation

shall be transferred to the fund not later than 90 days after

enactment.

So everything is done in this bill to move a fast start forward. Within 3 months, the administrator will have collected initial payments from all the participants and will have almost $9 billion.

Next, the bill includes a streamlined process to settle claims of terminally ill individuals immediately--immediately--upon enactment of this legislation. That is what is so attractive to me. Someone who has a very short time to live, someone with mesothelioma, has a chance of getting paid upfront, right away--much more than a chance, a commitment. This provision ensures the terminally ill individuals will have their claims processed quickly, and it should resolve some of the most pressing and most expensive claims before the trust is up and running so that there will not be an overwhelming flood of claims filed with the trust on day one.

Senator Specter included language in the statute of limitations to give individuals sufficient time to file their claims--5 years--so there will not be a need to rush to the fund for fear of being cut off and the administrator and the medical board can concentrate on the sickest people first.

Finally, as I mentioned previously, there are tight restrictions on how much the administrator may borrow for the express purpose of ensuring that the trust does not face a shortfall simply because of a debt service problem.

I would like to address the Bates White study in a little more depth. When opponents argue that the projections are too low, many of the arguments made to support this conclusion appear to be based on the Bates White study.

During consideration of this legislation, the Committee held a hearing on the Bates White study and asked CBO to review its conclusions. I was present and listened carefully to the testimony. Several criticisms and concerns were raised about the Bates White study, its assumptions, and its methodology. Witnesses before the Committee made several points that significantly undermined the credibility of the Bates White study.

First, witnesses argued that the Bates White study overestimated occupational exposure. In determining the overall number of individuals who could recover from the bill the Bates White study appears to have counted every employee who ever worked in an industry where there was asbestos exposure. This conclusion was reached by comparing the Bates White study to the Nicholson study.

The Nicholson, Perkel and Selikoff study, conducted in 1982, set the standard on this subject and is considered the most comprehensive asbestos study. It provides a good foundation for estimating the future cases of asbestos disease, and has been utilized in many of the models to develop future asbestos disease claims projections, including claims projections made for the Manville Trust. Yet, Bates White's conclusions are almost triple Nicholson's.

Navigant is a consulting firm that has worked on asbestos claims since the 1980s doing evaluations of claims projections and costs to companies. During the hearing, Navigant's witness explained that this discrepancy seemed to occur because Bates White simply used a straight percentage of the total U.S. workforce, whereas Nicholson conducted an extensive analysis of the industry and occupational exposure to asbestos.

Next, Bates White did not make a distinction in its calculations between exposed populations and eligible populations. This means that in the Bates White study it appears that every person who was ever exposed to asbestos was counted as eligible under the trust fund. However, not all individuals who are exposed to asbestos will become sick, nor will all individuals who are exposed to asbestos be able to meet the medical criteria and the exposure requirements necessary to receive compensation.

While considering asbestos legislation, several witnesses have pointed out that just because someone may have been exposed to asbestos at some point in their lifetime, it does not follow that they will become sick or will qualify for payment. I think this is an important point and is feeding some of the misperceptions around this bill. The science has not determined that every person who is exposed to asbestos will get sick.

This is true not just because each individual is different from one another and has differences in their immune systems, but because developing an asbestos-related disease usually requires prolonged and sustained exposure. Asbestos is a naturally-occurring mineral and most of us have been exposed to asbestos dust simply by walking outdoors. However, the current science concludes that casual contact is rarely sufficient to develop an asbestos disease.

Dr. James Crapo is Professor of Medicine at the National Jewish Medical and Research Center. He has more than 25 years of experience with asbestos-related issues, including medical research and clinical treatment of patients suffering from asbestos-related diseases and has published in the field of environmental toxicology, including the basis of asbestos-induced lung injury.

He testified that:

All of us are exposed to asbestos from the environment and

consequently have asbestos in our lungs. This background

level of exposure does not cause any asbestos-related

disease. Those diseases normally require substantial

occupational exposures or the equivalent.

In addition, the Navigant and the labor witnesses pointed out that the Bates White study did not seem to take into account that exposure rates within certain occupations decreased over time. This means that the Bates White study did not account for the fact that as companies became more aware of the dangers of asbestos they often did more to protect their workers.

The committee also heard from Dr. Laura Stewart Welch, a board- certified physician in internal medicine and occupational medicine. She has an active medical practice and treated many workers with asbestos- related disorders. She is currently medical director for The Center to Protect Workers Rights, a research institute affiliated with the Building and Construction Trades department of the AFL-CIO, and has authored over 50 peer-reviewed publications and technical reports in the field of occupational and environmental medicine, including papers describing the findings of asbestos-related disease in this group of construction workers.

She pointed out that the overall number from which Dr. Bates calculated the claims that will go into the trust is at least ten times too big. She explained that Dr. Bates extrapolated from a study that uses 2-3 fiber years as the basis for what constitutes significant exposure. The reference to fiber years is a way to calculate how much asbestos an individual has been exposed to. However, the legislation requires at least 25-40 fiber years to constitute significant exposure. So the legislation requires a much higher level of exposure to qualify.

Witnesses concluded that by failing to adequately consider each of these factors, the Bates White study provided a significant overestimation of claims.

Next, the committee heard testimony that argued the estimates made by the Bates White study do not reflect current experiences. The Bates White study asserts that by creating a no-fault system there will be a huge increase in filing of other cancer claims because it is no-fault rather than the adversarial system in the courts. However, the Manville Trust has similar, and in some cases exactly the same, medical criteria as the criteria in the FAIR Act, and it does not have litigation costs nor the deterrent of the adversarial system.

The Manville Trust was formed in 1988, and is the first and largest asbestos trust. In fact, it is not just the largest asbestos trust, but it is the largest toxic tort or personal injury trust of any kind. As of mid-2005 the trust had paid about $3.3 billion to settle 655,096 claims. The Manville Trust has gained so much experience in the field of asbestos claims settlements that it plans to begin offering claims- resolution services to other companies. Therefore, the experience of the Manville Trust should be considered a fair starting point for projections.

When comparing the Bates White study to Manville, witnesses from the committee hearing asserted Bates White projections are four times higher for other cancers than Manville. This was viewed as well outside a reasonable difference.

In addition, witnesses pointed out that there are several evidentiary requirements that do not seem to be adequately accounted for. In the two areas where the Bates White study predicts significant growth in claims, it does not account for the role of the physicians panel which is made up of three doctors who will personally review claims.

Lastly, the committee heard from experts who stated that the Bates White study used a methodology that has not been accepted by the unions, businesses, insurers, trial lawyers, CBO, the current bankruptcy trusts, or the courts now hearing asbestos cases.

For all these reasons, many of us concluded that the Bates White analysis fell far outside acceptable ranges for projections. To be clear, throughout this process both the AFL-CIO witness as well as business witnesses disputed the assumptions underlying the Bates White study and rejected its conclusion.

The next argument used by opponents is that the asbestos trust fund is going to fail because other trust funds have failed. This is not a new concern. In fact, throughout the process we looked at previous trust funds and attempted to evaluate the problems that arose.

The Black Lung Disability Fund was established by the Black Lung Benefits Revenue Act to pay black lung benefits to eligible miners whose mine employment ended before 1970 or whose employers were no longer in existence and therefore could not be assigned liability for their benefits. It was funded by excise taxes levied on coal sold by mine operators, but the Act includes language for repayable advances to the fund from the U.S. Treasury. This meant that when the Black Lung Trust Fund's resources were inadequate to meet its obligations the U.S. Treasury could advance the fund money to cover the costs. This provision is intentionally not included in the asbestos bill and instead language stating the opposite is included.

It is true that the number of black lung benefit claims were vastly underestimated and the costs of the black lung program were also underestimated. However, while the Black Lung Fund's costs were to be paid by industry, by 1977, 7 years after enactment, industry had made very few payments to the fund. The fund then sustained a deficit and the U.S. Treasury had to pay claims because of this default by mining companies. We did not ignore the problems created by the Black Lung Fund, rather we included several provisions in the asbestos bill to prevent this situation from taking place.

They are: explicit language prohibiting the Administrator from requiring any costs to be paid by U.S. Treasury; limits on borrowing authority and capacity; strong enforcement provisions if businesses default; requirements that other companies cover any potential shortfall; and reversion to the tort system if the trust runs out of money. I have already discussed the language in the asbestos bill to ensure that the business and insurer contributions are made and enforced, and to limit how much the administrator may borrow.

Finally, I would like to address an overarching concern that has been repeated throughout the debate. Interestingly, opponents keep arguing for 100-percent certainty. I don't know when we are ever provided 100- percent certainty. Congress is supposed to look at all the information available, hold

hearings, raise questions, draft legislation, offer amendments and then try to pass a statute. That is exactly what has been done here.

Senators Specter and Leahy have gone well beyond what is normally done around here to address problems. Every time an issue has been raised, they have tried to address the problem and find a solution. This stands in sharp contrast to the take-it-or-leave-it process that often describes legislative craftsmanship.

To now hear my colleagues express such an intense level of outrage that the bipartisan bill before the Senate does not contain adequate certainty or enough compromises is hard to swallow. To argue that a bill should not move forward because there might be unintended consequences would mean we would almost never pass legislation. And if we can't pass legislation unless we can guarantee there will never be an unintended outcome, then we might as well pack up and go home.

I should say I think this is a very important bill. Let me end with what I started. People who think the tort system is the way to go, who think it is OK that 61 percent of the settlement dollars go to transaction costs, who think that the victims who do not get this money are best served by the tort system--they are going to vote to sustain the point of order against the bill.

For those of us who believe it is the sickest victims who are going to be best taken care of in this trust, that this trust sets up an orderly and medically oriented protocol for a no-fault trust system and that victims are going to benefit from it and businesses will cease going into bankruptcy because of it, if you think that is a worthy thing, then you will vote for us.

I thank the Chair. I particularly thank the chairman and the ranking member of the committee. This has not been an easy bill. I truly believe they have both done a wonderful job, in the finest interests of the Senate, by working together across the aisle.

Mr. President, I have sought recognition to talk about asbestos reform, which is legislation that Senator Hatch had shepherded, along with Senator Leahy and Senator Frist, with substantial contributions by Senator Daschle, as well.

Today, I am going to submit for the record a bill which is a discussion draft. I had intended to submit this legislation late last week, but I was asked by the majority leader to defer for a week so that further consideration could be given today by the majority leader and by members of the Judiciary Committee, including the Presiding Officer.

We have reached a critical stage in the analysis and presentation of this legislation. It has had a long history. In July of 2003, more than 19 months ago, the Judiciary Committee passed out a bill, which all agreed had a great many problems, but it was passed out of committee largely along party lines. I voted for it, in order to move the bill along.

As it is generally known, I then enlisted the aid of a senior Federal judge, Judge Edward R. Becker, who recently was the chief judge of the Court of Appeals for the Third Circuit, to undertake discussions, called mediation, and for 2 days in August of 2003, Judge Becker and I sat in his chambers with the so-called stakeholders representatives of the manufacturers, representatives of labor, AFL-CIO, representatives of the insurance industry, and representatives of the trial lawyers. That has been followed by some 39 separate meetings which have been convened in my conference room.

In addition to numerous discussions Judge Becker has held with interested parties and which I have held with interested parties, we have come to a point in our work where we have found agreement among the parties on many items. We have found the stakeholders very close together on other items.

As might be expected, it has been necessary to make judgments, which is the responsibility of this Senator and which I have done in collaboration with many other Senators, about what this bill represents, which in my considered judgment is an equitable bill.

In early January, I circulated a discussion draft which had certain blanks until we had a hearing, which was held on January 11. I have also had an eye to trying to get the bill completed so that the majority leader could take it up at an early date. If that is not done, and the bill languishes into the season where we take up the appropriations bills, it simply will not be taken up. The asbestos issue is a crisis in the United States today. There is general agreement on that, with some 74 companies having gone into bankruptcy, and with thousands of asbestos victims suffering from mesothelioma, which is a deadly disease, and other deadly diseases and not collecting because their employers have gone bankrupt.

We have found other very difficult issues on so-called ``mixed dust.'' We held a hearing last week, and I think we have worked through the scientific evidence on that proposal so that we are now in a position to know when someone comes forward with a claim, whether it is from asbestos, which has already been covered under the trust fund, or whether it is from silica, which would be a separate cause of action.

The essential provisions of this legislation create a trust fund. In order to collect from the trust fund, victims--people exposed to asbestos--must establish certain levels of disability.

There is a graduated scale as to compensation. The offset to the right of victims to give up their right to jury trial is the assurance that if this fund proves to be insufficient, people can go back to the jury trial system. There had been a great deal of discussion as to what was an adequate amount for the trust fund.

The manufacturers and insurers made an offer of $140 billion. There were discussions last fall between Senator Frist and Senator Daschle where there was agreement to that proposal as to the total amount, although there had not been and has not been any agreement by the AFL- CIO or by labor. After a lot of consideration, it is my judgment that is an equitable figure. It is impossible to say what the total claims will be, what the total sum will be that is required because we do not know how many claims there will be. But if that figure should prove insufficient, then victims--claimants--have a right to go back to the jury trial system.

There had been some disagreement as to how much money should be in at the start, with manufacturers and insurers wanting $40 billion in the first 5 years, and labor wanting $60 billion. After considerable inquiry, I was satisfied that the fund would have the ability to borrow at least $20 billion extra, so that the $60 billion total looked to by labor would be realized. Again, not to the satisfaction of all the parties, that is what the bill provides.

The manufacturers and the insurers were looking for a 7\1/2\ year period where they would be assured there would be no other claims made. After extensive consideration, it was my judgment that there were certainly reasonable assurances that the fund would last for at least 7\1/2\ years, but that if the fund was to fall short, that ought to be a burden not met by the claimants, but they ought to have their right to reversion to a jury trial.

There was a consideration as to what would happen on startup, with the manufacturers and insurers wanting a very lengthy period of time. The bill strikes a compromise, with 270 days to start up the bill on exigent claims--that is, very serious claims involving mesothelioma-- and 18 months on other claims. Labor and the trial lawyers felt there ought to be access to the courts continuously until the fund was started. The reality is, there are many delays, and a 270-day delay, while nobody likes any delays, is not an excessive delay under our litigation system in the United States. So that compromise and that adjustment was made.

As to the pending cases, labor and the trial lawyers wanted an exclusion on mesothelioma in cases which had been filed. This bill provides that the requests of manufacturers and insurers had a very solid basis, that if they were going to put up a very substantial trust fund, that all of the cases ought to go into the trust fund, and that is the structure of the bill unless the case is to a jury or unless there has been a settlement with a particular individual.

We have worked through the problems of the Federal Employees Liability Act, where we are very near a solution. I talked to Judge Becker earlier today, and he has talked to the parties there, and they are very close to resolving that issue. But in any event, there has been an agreement that if there is not a way to reconcile all of those issues, then there will be an arbitration clause in the bill which will solve that issue.

There had been a consideration as to the issue on medical screening, with the manufacturers and the insurers objecting to medical screening. After considerable consideration, it was decided that medical screening ought to be provided in the bill, although it ought to be provided in a very tightened-up process so it would not bring into the litigation system people who did not have bona fide claims, that it would not increase the litigation inappropriately. Where you have substantial motivation for the trial lawyers to go out and find clients and bring claims, that is one thing. But if that is absent because of the reduction in attorneys' fees, then it seemed to me that these are people who do not ordinarily get physical examinations on an annual basis, as Senators might, and that it was fair to have medical screening, but it has been done on a tightened basis, and it was considered that was a fair approach here.

When it came to what is called level seven, where we have smokers involved with reduced compensation, it was generally agreed we were not looking to have a smokers bill, so that if the claims exceeded 115 percent of the estimate by the CBO, the Congressional Budget Office, those cases would go back to the judicial system where the defendants are said to win most of those cases.

We have come to agreement on many contentious issues. The administrative provisions have been agreed to with the Department of Labor. We have agreed to a provision that if you have a 40-year-old mesothelioma victim with dependent children, the administrator shall have authority to give him more and to give somebody, illustratively, in their eighties with no dependents less, as long as the fund remains neutral.

We have come to agreement on judicial review. We have come to agreement on what courts will handle the cases if there was a reversion. There had been a request by the manufacturers and insurers to have all the cases go to Federal courts. Labor and the trial lawyers wanted the cases to go wherever the plaintiff chose to bring them. We have come to agreement that they would go to the Federal courts with the exception of the State courts where the individual lived as to venue or where the matter occurred.

We have on a consensus basis agreed to tighten up the penalties on violation of environment, safety requirements, and health requirements. Labor wanted a provision as to transparency, and after a lot of analysis, we have worked that through.

In the course of these extensive negotiations, there have been, I would estimate, some 150 to 250 legislative changes on modification. So we have come to a point where we now have this bill to be submitted for discussion purposes again. I had wanted to introduce this bill on a number of occasions. As I said, for the record, 2 or 3 weeks ago, Senator Leahy wanted additional time to study it. I have worked closely with Senator Feinstein and met with her and with her staff. As enumerated in the course of my written statements, some 27 Senators have participated in this process. It is very, very complicated. I do not think the Congress has ever tackled a more complicated legislative issue. In fact, I think the Congress has never tackled a legislative issue as complicated as this, certainly not during the 24 years-plus tenure of which I have had.

As it has been commented about publicly, this issue brings together four of the most powerful if not the most powerful groups in Washington: the manufacturers; labor, with the AFL-CIO; the trial lawyers; and the insurance companies. Each has pressed very hard for advantage, which you would expect them to make their press.

As I say, this bill, numbering some 291 pages, contains many agreements. On those issues where we could not structure and forge agreements, the judgments have been made. I take the responsibility for the judgments which have been made here.

I submit that it is an equitable bill. I am not in concrete on any of these provisions. I am willing to discuss them. I am willing to talk about them further. But the basic approach of a trust fund is central to a resolution of this very difficult issue if we are to resolve it. If you press on one part of a balloon, the air goes to another part of the balloon, and while insurers and manufacturers may not like screening, labor does not like the limitation on the fund, and every time you turn, there is an issue where someone wants something more.

I believe that this bill, the structure of this bill, although not necessarily the particulars, is the last best chance.

I have taken over the responsibility as chair of the Judiciary Committee, and we have an agenda which is gigantic. In order to work in our first hearing on January 11, we had to work it around the hearings on White House Counsel Gonzales. And last week we spent all of the week on that issue. Last week the committee took up the issue of class action which is now on the floor. This Thursday we have hearings on bankruptcy because the majority leader wants to move forward. We have in the offing judicial nominations, and we have the prospect of a

Supreme Court nominee. So the Judiciary Committee calendar is absolutely jammed.

If this cannot provide the framework for a resolution of this issue, considering the 20 months of very laborious effort put in by Judge Becker and by some 27 Senators and 39 separate conferences, I do not know what would be fruitful for the Judiciary Committee for the Senate to do next.

I have sought recognition to introduce a discussion draft of the Fairness in Asbestos Injury Resolution Act of 2005, FAIR Act, the successor to S. 1125 and S. 2290, the FAIR Acts of 2003 and 2004. My colleagues Senator Frist, Senator Hatch and Senator Leahy deserve enormous credit for the drafting of these acts and for the development of this legislation. There is a will in the Senate to enact legislation that should put an end to the ongoing rash of bankruptcies, growing monthly; diverting resources from those who are truly sick; endangering jobs and pensions; and creating the worst litigation crisis in the history of the American judicial system. The FAIR Act is still alive. The Senate plainly wants a more rational asbestos claims system, and I believe that this legislation offers a realistic prospect of accomplishing that result.

This legislation provides substantial assurances of acceptable compensation to asbestos victims and substantial assurances to manufacturers and insurers to resolve, with finality, asbestos claims. For more than two decades, a solution to the asbestos crisis has eluded Congress and the courts. Seventy-four companies have gone bankrupt, thousands of individuals who have been exposed to asbestos have deadly diseases--mesothelioma and other such ailments--and are not being compensated. According to the RAND Institute for Civil Justice, ``about two-thirds of the claims are now filed by the unimpaired, while in the past they were filed only by the manifestly ill.'' According to RAND, the number of claims continues to rise, with over 600,000 claims filed already and 300,000 pending. The number of asbestos defendants also has risen sharply, from about 300 in the 1980s, to more than 8,400 today and most are users of the product, not its manufacturers. These companies span 85 percent of the U.S. economy and nearly every U.S. industry, and include automakers, shipbuilders, textile mills, retailers, insurers, shipbuilders, electric utilities and virtually any company involved in manufacturing or construction in the last thirty years.

Asbestos leaves many victims in its wake. First and foremost, the sick and their families have suffered. But the flawed asbestos litigation system not only hurts the sick and their chance at receiving fair compensation, but also claims other victims. These include employees, retirees and shareholders of affected companies whose jobs, savings and retirement plans are also jeopardized by the tide of asbestos cases. With asbestos litigation affecting so many companies, this also impacts the overall economy, including jobs, pensions, stock prices, tax revenues and insurance costs. According to a 2002 study by Nobel laureate Joseph Stiglitz, asbestos bankruptcies have cost nearly 60,000 workers their jobs and $200 million in lost wages. Employees' retirement funds have shrunken by 25 percent.

In July 2003, the Judiciary Committee knowingly voted out S. 1125, a bill with many problems, largely along party lines, in an effort to move the legislation. S. 1125 created the basic structure of the legislation, and made a huge stride in working out the medical criteria. However, the bill floundered on other issues. In August, at my request, Judge Edward R. Becker, a Federal judge for 33 years, convened in his chambers in Philadelphia for 2 days the so-called stakeholders--manufacturers, labor, AFL-CIO, insurers and trial lawyers--to determine if some common ground could be found. Until the preceding May, Judge Becker had been the chief judge of the Third Circuit Court of Appeals and wrote the opinion in the asbestos class action suit which was affirmed by the U.S. Supreme Court.

From September 2003 through January 2005, there have been 37 stakeholder meetings in my conference room, with Judge Becker as a pro- bono mediator, usually attended by 25 to 40 representatives and sometimes over 75 present. Judge Becker and I have sought an equitable bill which took into account, to the maximum extent possible, the concerns of the stakeholders and to get their input on drafting of the bill. After analysis and deliberation, we found we could accommodate many of the competing interests.

This process commenced with the blessing of Chairman Hatch and Ranking Member Leahy of the Judiciary Committee. This extended process allowed the stakeholders an extraordinary ``hearing'' process and really amounted to the longest ``mark-up'' in Senate history although not in the customary framework. We have had the cooperation of many Senators. Senators Hatch and Leahy have had representatives at all the meetings. The majority leader, Senator Hatch and Senator Leahy have addressed this ``working group'' at our meetings. Senator Hatch and Senator Leahy's representatives have been active participants at every meeting, as well as the members of the staffs of Senators Feinstein, Carper, Cornyn, DeWine, Ben Nelson, Baucus, Biden, Chambliss, Craig, Dodd, Durbin, Feingold, Graham, Grassley, Kennedy, Kohl, Kyl, Landrieu, Levin, Lincoln, Murray, Pryor, Schumer, Sessions, Snowe, Stabenow, and Voinovich.

The concept of a trust fund is an outstanding idea. Senator Hatch deserves great credit for moving the legislation in the direction of a trust fund with a schedule of payments analogous to worker's compensation so the cases would not have to go through the litigation process. Under this proposal, the Federal Government would establish a national trust fund privately financed by asbestos defendant companies and insurers. No taxpayer money would be involved. Asbestos victims would simply submit their claims to the fund. Claimants would be fairly compensated if they meet medical criteria for certain illnesses and show past asbestos exposure. The Trust Fund would guarantee compensation for impaired victims.

Through the series of meetings with Judge Becker, we have wrestled with and have been able to solve a number of very complex issues. The size of the trust fund was always a principal issue of dispute, starting at $108 billion. The manufacturers/insurers raised their offer to $140 billion. Last October, Majority Leader Frist and then- Democratic Leader Daschle agreed to $140 billion. When Senator Frist and Senator Daschle, in an adversarial context, agreed to the adequacy of the $140 billion figure, it is difficult to exceed it even though the AFL-CIO did not contemporaneously agree.

It is not possible to say definitely what figure would be adequate because it depends on the uncertainty of how many claims will be filed. There is support for the adequacy of the $140 billion figure from reputable projections. But they are, admittedly, only projections.

The real safety valve, if the fund is unable to pay claims, is for the injured to have the ability to go back to court if the system is not operational and able to pay exigent health claims within 9 months after enactment, and all other valid claims within 18 months of enactment.

The claimants object to any hiatus between access to the courts and an operating system; but the reality is that court delays are customarily longer than the delay structured in this system. The defendants and insurers object saying it is too short a time frame, but they have the power to expedite the process by promptly paying their assessments. I am confident that there will be no problem in administering the system and processing the claims. Conversations have been held with the leaders of the Manville Trust and the RAND Institute study and they persuade me that the volume of claims can be efficiently administered by the fund administrator using a technique developed by the Manville Trust and other similar claims facilities that have processed asbestos claims for many years. The Manville Trust has processed as many as 150,000 claims per year. The number of exigent claims anticipated in the first 9 months of the fund is vastly smaller and even the total number of claims anticipated in the first 18 months is significantly less that which the Manville Trust has handled in a comparable period. Additionally, the bill provides the administrator with the option to contract out

the exigent claims to a claims facility for expedited processing under the standards of the fund on a voluntary basis. The short time frame will prod the system to become operative at an early date. The bill sends the claims back to the fund as soon as it is certified operational with a credit for any payment of the scheduled amount.

Similarly, the defendants seek a commitment that the legislation will bar return to the courts for at least 7\1/2\ years. It is hard to see how the substantial fund would be expended in a lesser period. Here again, the legislation gives the defendant substantial assurances that the system will last at least 7\1/2\ years. If it collapses, the claimants should not bear the burden, but should reclaim their constitutional right to a jury trial.

The claimants sought $60 billion in startup contributions within 5 years and the defendants countered with a maximum of $40 billion. The fund's borrowing power should enable it to borrow at least the balance of $20 billion because of the defendants continuing substantial financial commitments. Here again, the bill meets the standard of substantial assurances, albeit not perfect certainty, that $60 billion will be in hand within the first 5 years.

A key issue for the claimant has been that of workers' compensation subrogation. This issue is important because the value of an award to the claimant depends on whether the claimant may have to pay a substantial amount of it to others. While the precise picture is different from State to State, in general, workers' compensation laws give employers, and their insurance carriers, subrogation rights against third-party tortfeasors and a lien on the injured employee's recovery from a third-part tortfeasor. This is a big deal because workers' compensation covers the employee's medical costs.

I closely examined and considered including a proposal that would have called for a so-called workers' compensation ``holiday.'' Such a proposal would have provided for a ``holiday'' from worker's compensation payments during the period of receipt of payments from trust fund except to the extent that the compensation would exceed them, with a waiver of past and future subrogation. However, as each State has different workers' compensation laws and I concluded that such a proposal may go beyond the practice in a number of States leaving some claimants with a significantly reduced award.

Furthermore, while not undisputed like some other matters on this legislation, there is some significant basis in the assertion by claimants that the award values in the bill were designed with the concept in mind that there would be no liens or rights of subrogation against the claimants based on workers' compensation awards and health insurance payments.

Therefore, in the final analysis, I have determined that to be fair to victims, claimants should be allowed to retain and receive the full value of both their fund awards and workers' compensation payments. It is important that the bill must extinguish any liens or rights of subrogation that other parties might otherwise assert against the claimants based on workers' compensation awards and health insurance payments.

Another key issue for the claimants has been the legislation's treatment of asbestos disease claims under the Federal Employers' Liability Act, FELA, the workers' compensation system for rail workers. Earlier versions of the bill would have preempted FELA claims for asbestos-related diseases, limiting victim's recovery to compensation under a national asbestos trust fund. Rail labor asserts that such an approach is unfair to rail workers, since for all other workers, the bill maintains workers' compensation rights. Alternative approaches to dealing with the FELA issue have been proposed, including providing for a supplemental payment, in addition to awards under the bill, to provide compensation to rail workers for work-related asbestos diseases. The AFL-CIO's affiliates who represent workers in the rail industry have been engaged in discussions with industry on this issue, and will continue to work to see if a fair resolution can be reached. I have included in the bill language that would call for binding arbitration between the parties if they do not arrive at a solution 30 days post enactment.

In these marathon discussions, plus the January hearing, I understand the deep concerns expressed by the stakeholder representatives on more concessions for their clients. On the state of the 20 year record, this choice is not between this bill and one which would give their clients more concessions. The choice is between this bill and the continuation of the present chaotic system which leaves uncompensated thousands of victims suffering from deadly diseases and litigation driving more companies into bankruptcy.

We considered at length the manufacturers/insurers objections to medical screening, but concluded such a provision was necessary as an offset to the reduced role of claimant's attorney. With the previous potential of a substantial contingent fee, claimants' attorneys identified those damaged by exposure to asbestos. Absent that motivation, it is reasonable to have routine examinations for people who would not be expected to go for such checkups on their own; so as a matter of basic fairness, such screening is provided. By establishing a program with rigorous standards, as we have done in this bill, unmeritorious claims can be avoided with the fair determination of those entitled to compensation under the statutory standard.

The legislation has closely examined the issues of so-called ``leakage'' in the fund and has provided all asbestos claims pending on the date of enactment, except for non-consolidated cases actually on trial, and except cases subject to a verdict or final order or final judgment, will be brought into the asbestos trust fund. Furthermore, only written settlement agreements, executed prior to date of enactment, between a defendant and a specifically identifiable plaintiff will be preserved outside of the fund; the settlement agreement must contain an express obligation by the settling defendant to make a future monetary payment to the individual plaintiff, but gives the plaintiff 60 days to fulfill all conditions of the settlement agreement.

I have also included in the legislation language which is designed to ensure prompt judicial review of a variety of regulatory actions and to ensure that any constitutional uncertainties with regard to the legislation are resolved as quickly as possible. Specifically, it provides that any action challenging the constitutionality of any provision of the act must be brought in the United States District Court for the District of Columbia. The bill also authorizes direct appeal to the Supreme Court on an expedited basis. An action under this section is to be filed within 60 days after the date of enactment or 60 days after the final action of the administrator or the commission giving rise to the action, whichever is later. The district court and Supreme Court are required to expedite to the greatest possible extent the disposition of the action and appeal.

Claimants also expressed the need for assurances that the manufacturers payment into the fund. Therefore, the legislation I am introducing also requires enhanced ``transparency'' of the payments by the defendants and insurers into the fund. The proposal provides that 20 days after the end of such 60-day period, the administrator shall publish in the Federal Register a list of such submissions, including the name of such persons or ultimate parents and the likely tier to which such persons or affiliated groups may be assigned. After publication of such list, any person may submit to the administrator information on the identity of any other person that may have obligations under the fund. In addition, there are enhanced notice and disclosure requirements included in the draft. It also provides that within 60 days after the date of enactment, any person who, acting in good faith, has knowledge that such person or such person's affiliated group would result in placement in the top tiers, shall submit to the administrator, 1, either the name of such person or such person's ultimate parent; and, 2, the likely tier to which such person or affiliated group may be assigned under this act.

As I have mentioned previously, this legislation deals with a number of very complex issues, one of them being that of ``mixed-dust.'' I held a hearing in the Judiciary Committee in this issue on Feb. 2, 2005. The manufacturers fear that many asbestos claims will be ``repackaged'' as silica claims in the tort

system. Evidence deduced at the hearing reflects that this has been happening in a large number of jurisdictions. If a claim is due to asbestos exposure at all, the program should be the exclusive means of compensation. The stakeholders agree that this is an asbestos bill, designed to dispose of all asbestos claims but that workers with genuine silica exposure disease ought to be able to pursue their claims in the tort system. The problem is that with those claims where the point of demarcation is unclear. Silica/asbestos defendants are worried that they will find themselves in court with the burden of proving that the plaintiff's injury is due to asbestos rather than silica. This legislation makes clear that pure silica claims are not preempted, but claims involving asbestos disease are preempted. A claimant must establish by a preponderance of evidence that their functional impairment was caused by exposure to silica, and asbestos exposure was not a significant contributing factor. Although this does impose the burden on the claimant, this is no different than the burden the plaintiff or any party advancing a position has in producing medical evidence in any case that the physician will state that a disease was caused by some condition or exposure or that it was not caused by some condition or exposure.

Another very complicated issue I have addressed in my legislation, at the request of the claimants, is that of providing for award adjustments for exceptional mesothelioma cases based on age and the number of dependents of the claimant. For example, a mesothelioma victim who is 40 years old with two kids will be able to get an upwards adjustment in his award amount as compared to a 80-year-old mesothelioma victim with no dependents. The impact of such adjustments to the fund will remain revenue-neutral.

What I have introduced is a complicated bill, but one that is both integrated and comprehensive and reflective of a remarkable will to enact legislation. If this bill is rejected, I do not see the agenda of this Senate Judiciary Committee revisiting the issue because of other business and the futility in doing so. I cannot conceive of more strenuous effort being directed to this subject that has been done in the past 2 years. This is the last best chance.

I remain confident that we can forge and enact a bill that is fair to the claimants and to business and that will put an end once and for all to this nightmare chapter in American legal, economic and social history. If we can summon the legislative will in a bipartisan spirit, it can be done.

I ask unanimous consent to print in the Record a 291-page discussion draft.

It would be my request to my colleagues that the matter be examined and studied because we are going to have to move forward on it one way or another, if it is to be taken up at an early date. I have set a very demanding schedule on the work of those who have been in the drafting process. So I ask consideration of my colleagues to consider this matter at an early opportunity.

I thank the Chair.

I suggest the absence of a quorum.

Mr. President, I understand there is no time limit on speeches. Am I correct?

Many Senators on both sides of the aisle find the concept of a trust fund to compensate the victims of asbestos-related diseases appealing. I have consistently said that I would support a properly designed and adequately funded trust fund bill that would fairly compensate all the victims of asbestos-induced disease in a timely way. The problem is that S. 852 does not meet that standard. It is not properly designed and it is not adequately funded. Many seriously ill victims of asbestos disease are completely excluded from compensation under the fund. And the legislation does not even provide adequate revenue to ensure that all the victims who are eligible for compensation under the terms of the trust fund will actually receive what the legislation promises them. These are fundamental flaws that cannot be corrected by a few last minute amendments. They go to the heart of the bill.

The problem is that powerful corporate interests responsible for the asbestos epidemic have fought throughout this process to escape full accountability for the harm they have inflicted. As a result, the focus has shifted from what these companies should pay victims to what they are willing to pay them. That is preventing the Senate from enacting trust fund legislation that will truly help the workers who have been seriously injured by this industrial plague.

This legislation was constructed backwards. The first decision made was that the size of the trust fund could not exceed $140 billion over 30 years. Why? Because that was all the corporations whose reckless conduct created the asbestos problem were willing to pay. The Asbestos Study Group, the chief lobbyists for this legislation, began this process by promising ``an evergreen fund'' that would provide as much money as necessary over time to fairly compensate the victims of asbestos disease. But they soon reneged on that commitment. Instead, these companies are now insisting on an absolute cap on their liability--no matter how many victims are suffering from asbestos- induced disease or how serious their illnesses. Asbestos diseases take years, sometimes decades, to develop after the exposure to asbestos fibers. Thus, no one can say for sure how many victims there will be. The companies claim that they need financial certainty to plan for the future. What about the millions of victims of asbestos exposure who live every day under

the cloud of asbestos disease? What about the ability of these workers and their families to plan for their future?

Each year, more than 10,000 of them die from lung cancer and other diseases caused by asbestos. Each year, hundreds of thousands of them suffer from lung conditions which make breathing so difficult that they cannot function at all. Even more become unemployable due to their medical condition. And, because of the long latency period of these diseases, all of them live with fear of a premature death due to asbestos-induced disease. These are the real victims. Aren't they entitled to the certainty of knowing that, should the worst happen, they and their families will be fairly compensated? All S. 852 offers them is an inadequately funded trust fund that most experts believe will be insolvent within a few years.

The real crisis which confronts us is not an ``asbestos litigation crisis,'' it is an asbestos-induced disease crisis. All too often, the tragedy these workers and their families are enduring becomes lost in a complex debate about the economic impact of asbestos litigation. We cannot allow that to happen. The litigation did not create these costs. Exposure to asbestos created them. They are the costs of medical care, the lost wages of incapacitated workers, and the cost of providing for the families of workers who died years before their time. Those costs are real. No legislative proposal can make them disappear. All legislation can do is shift those costs from one party to another. Unfortunately, S. 852 would shift more of the financial burden onto the backs of injured workers. That is unacceptable.

Senators Specter and Leahy have devoted an enormous amount of time and effort to this asbestos trust fund legislation. They did not set the arbitrary $140 billion ceiling. The Republican leadership made clear that the trust fund could not exceed that amount regardless of the legitimate needs of asbestos victims. The sponsors were left with the unenviable task of deciding which worthy claims to exclude. As a result, the bill before us contains fundamental flaws, which make it both unfair and unworkable. It does not provide a reliable guarantee of just compensation to the enormous number of workers who are suffering from asbestos-induced disease.

The argument that there are serious inadequacies in the way asbestos cases are adjudicated today does not mean that any legislation is better than the current system. Our first obligation is to do no harm. We should not be supporting legislation that excludes many seriously ill victims from receiving compensation and that fails to provide a guarantee of adequate funding to make sure that these injured workers covered by the trust fund will actually receive what the bill promises them. This bill will do harm to these asbestos victims.

The list of serious flaws in S. 852 is, unfortunately, a long one. I will focus my remarks on several of the most egregious.

Experts tell us that the asbestos trust created by this legislation is seriously underfunded. The funding plan in this bill relies on very substantial borrowing in the early years as the only way to pay the flood of claims. The result will be huge debt service costs over the life of the trust that could reduce the $140 billion intended to pay claims by as much as 40 percent. The amount remaining would be far too little to pay the claims of all of those who are entitled to compensation under the terms of the bill.

In addition, there is a strong constitutional argument that the existing bankruptcy trusts cannot be forced to turn over all their assets, which will place $7.6 billion of the projected funding in jeopardy. Many companies are also likely to challenge their obligation to finance the asbestos trust. It is not at all clear how much money will actually be available to pay eligible victims what the legislation promises they will receive.

There is likely to be a serious shortfall in the early years, when nearly 300,000 pending cases will be transferred to the trust for payment. Studies show the trust will not have the resources to pay those claims in a timely manner. Payments to critically ill people may be delayed for years.

One way to reduce the enormous financial burden on the fund in the early years would be to leave many of those cases in the tort system, especially cases which were close to resolution. That would be fair to the parties in those cases and it would greatly improve the financial viability of the fund. Unfortunately, that proposal has been repeatedly rejected by the sponsors of the bill. As a result, there will be a serious mismatch between the number of claims the trust fund will face when its doors open and the payments coming into the fund. That will force major borrowing in the first 5 years. The debt service resulting from that borrowing will financially cripple the trust.

In its August report, CBO recognizes the seriousness of this debt- service problem, explaining:

Because expenses would exceed revenues in many of the early

years of the fund's operations, the Administrator would need

to borrow funds to make up the shortfall. The interest cost

of this borrowing would add significantly to the long-term

costs faced by the fund and contributes to the possibility

that the fund might become insolvent.

In a response to inquiries from Judiciary Committee members last week, CBO issued an even more dire warning about the likelihood of insolvency:

There is a significant likelihood that the fund's revenues

would fall short of the amount needed to pay valid claims, as

well as debt-service and administrative costs. There is also

some likelihood that the fund's revenues would be sufficient

to meet those needs. The final outcome cannot be predicted

with great certainty. Without a substantial increase in the

resources available to the fund, there is no way to guarantee

that the fund will not either revert to the court system or

require additional funding.

That statement should trouble every Senator on both sides of the aisle. There is ``a significant likelihood that the fund's revenues would fall short.'' While we may disagree on other issues regarding compensation for asbestos victims, each of us knows that it would be disastrous--for victims and businesses alike--to create a trust fund that cannot meet its financial commitment to victims and is destined for insolvency. None of us want to see that result. We cannot in good conscience ignore the warnings from the Congressional Budget Office and from other experts.

In addition to the concerns CBO has identified, there are other major problems with S. 852 related to the projections of pending and future claims that could push the trust fund even further out of balance.

For example, there has been a significant increase in the number of mesothelioma cases in recent years. The only known cause of mesothelioma is asbestos exposure. This new information suggests that the CBO cost estimate may understate the cost of the mesothelioma claims that the trust fund will incur by more than $15 billion. This is by no means the only instance where there is strong evidence to suggest that the number of eligible claimants will substantially exceed CBO estimates.

If S. 852 is enacted, the U.S. Government will be making a commitment to compensate hundreds of thousands of seriously ill asbestos victims, but will not have ensured that adequate dollars are available to honor its commitment. That will precipitate a genuine asbestos crisis, and this Congress will bear the responsibility for it. Since the trust fund will be borrowing extensively from the U.S. Treasury in its first few years of operation; if it does become insolvent, there will be a direct impact on American taxpayers.

The legislation before us would close the courthouse doors to asbestos victims on the day it passes, long before the trust fund will be able to pay their claims. Their cases will be stayed immediately. Seriously ill workers will be forced into a legal limbo for up to 2 years. Their need for compensation to cover medical expenses and basic family necessities will remain, but they will have nowhere to turn for relief.

Under the legislation, even exigent health claims currently pending in the courts will be automatically stayed for 9 months as of the date of enactment. An exigent health claim is one in which the victim has been diagnosed ``as being terminally ill from an asbestos-related illness and having a life expectancy of less than one year.''

By definition, these cases all involve people who have less than a year to live due to mesothelioma or some other disease caused by asbestos exposure. Their cases would all be stayed

for 9 months. Nine months is an eternity for someone with less than a year to live. Many of them will die without receiving either their day in court or compensation from the trust fund.

The stay language is written so broadly that it would even stop all forward movement of a case in the court system. A trial about to begin would be halted. An appellate ruling about to be issued would be barred. Even the deposition of a dying witness could not be taken to preserve his testimony. The stay would deprive victims of their last chance at justice. I cannot believe that the authors of this bill intended such a harsh result, but that is what the legislation does.

The bill does contain language allowing an ``offer of judgment'' to be made during the period of the stay in the hope of producing a settlement. However, this provision is unlikely to resolve many cases because it requires the agreement of the defendants. There is no incentive for defendants to agree to a settlement when the case has been stayed. Those who have tried cases know that it is only the imminence of judicial action which produces a settlement in most cases. Delay is the defendant's best ally; and under this bill, the case is at least delayed for 9 months and may never be allowed to resume if the fund becomes operational. If, however, these exigent cases were not stayed, and judicial proceedings could continue, there would be far more likelihood of cases settling under the offer of judgment process.

I strongly believe that, at a minimum, all exigent cases should be exempted from the automatic stay in the legislation. Victims with less than a year to live certainly should be allowed to continue their cases in court uninterrupted until the trust fund became operational. Their ability to recover compensation in the court should not be halted until the trust fund is open for business and they are able to receive compensation from that fund. It is grossly unfair to leave these dying victims in a legal limbo. For them, the old adage is especially true-- justice delayed is justice denied.

Under the legislation, defendants would receive a credit against what they must contribute to the trust fund for whatever payments they make to these dying victims; so they would not be ``paying twice,'' as some have claimed.

Allowing the exigent cases to go forward in the courts without interruption is a matter of simple fairness. Staying the cases of victims who have less than a year to live is bureaucratic insensitivity at its worst. Most of these victims will not live to see the doors of the trust fund open.

We should not deprive them of their last chance--their only chance-- to receive some measure of justice before asbestos-induced disease silences them. They should be allowed to receive compensation in their final months to ease their suffering. They should be allowed to die knowing that their families are financially provided for. S. 852 in its current form takes that last chance away from them.

I intend to offer an amendment to allow these severely ill victims to have their day in court.

The way the legislation is written, victims will lose out at the back end of the process as well, should the trust fund run out of money after several years of operation.

If the trust fund does become insolvent, a very real possibility, workers will not have an automatic right to immediately return to the court system. The process outlined in the current bill could take years. Workers could end up trapped in the trust with reduced benefits and long delays in receiving their payments. There needs to be a clear, objective trigger--inability of the trust to pay a certain percentage of claims within a set period of time--that will automatically allow victims to pursue their claims in court if the trust runs out of money. The Judiciary Committee's 2003 legislation contained such a provision, but this bill does not. We cannot allow seriously injured workers with valid claims who are not paid in a timely manner by the trust to be denied their day in court. That would be a shameful injustice.

The asbestos trust is being presented as an alternative source of compensation for victims suffering from asbestos-induced disease. If that alternative runs out of money and can no longer compensate those victims in a full and timely manner, their right to seek compensation through the judicial system should be immediately restored with no strings attached. No principle is more basic. Yet this bill violates that principle.

I am particularly upset by the way lung cancer victims are treated in this bill. Under the medical criteria adopted by the Judiciary Committee overwhelmingly 2 years ago, all lung cancer victims who had at least 15 years of weighted exposure to asbestos were eligible to receive compensation from the fund. However, that was changed in S. 852. Under this bill, lung cancer victims who have had very substantial exposure to asbestos over long periods of time are denied any compensation unless they can show asbestos scarring on their lungs. The committee heard expert medical testimony that prolonged asbestos exposure dramatically increases the probability that a person will get lung cancer even if they do not have scarring on their lungs. Deleting this category will deny compensation to more than 40,000 victims suffering with asbestos-related lung cancers. Under the legislation as now drafted, these victims are losing their right to go to court, but receiving nothing from the fund. How can any of us support such an unconscionable provision?

Since we began considering asbestos legislation, no aspect has concerned me more than the treatment of lung cancer victims. My top priority has been to make sure that these severely ill workers receive just and fair compensation.

And I have not been alone. A number of other Members have spoken out about the importance of adequately providing for lung cancer victims who have been exposed to substantial amounts of asbestos over long periods of time.

Now we find that these victims, many of whom will have their lives cut short because of asbestos-induced disease, will not receive one penny in compensation from the trust fund. They are losing their right to go to court, but being denied any right to compensation under the fund. They are, in essence, being told to suffer in a legally imposed silence with no recourse whatsoever.

One of the arguments we hear most frequently in favor of creating an asbestos trust fund is that in the current system, too much money goes to people who are not really sick and too little goes to those who are seriously ill. Well, lung cancer victims who have years of exposure to asbestos are the ones who are seriously ill. They are the ones this legislation is supposed to be helping. Yet they are being completely excluded.

The committee heard extensive testimony from distinguished medical experts--Dr. Laura Welsh and Dr. Philip Landrigan--that prolonged exposure to asbestos can cause lung cancer even if the victim does not also have markers of nonmalignant asbestos disease. They cited numerous medical authorities supporting their position. They even described treating lung cancer victims whose disease was clearly caused by asbestos but who had neither pleural thickening or asbestosis.

In a situation where people are undeniably severely ill and undeniably had 15 or more years of weighted exposure to asbestos, it is wrong to completely exclude them from compensation under the trust fund. Some of the proponents of S. 852 have attempted to justify excluding them by claiming that smoking probably caused their lung cancers. But, the evidence refutes this contention.

First, even those lung cancer victims with 15 or more weighted years of exposure to asbestos who had never smoked were removed from eligibility for compensation under the trust fund. So this is about more than just the relationship between asbestos and smoking.

Second, regarding the smoking issue, Dr. Landrigan testified that smokers who have substantial exposure to asbestos have 55 times the background risk of developing lung cancer, while smokers who were not exposed to asbestos have 10 times the background risk of developing lung cancer. Clearly, the asbestos exposure makes a huge difference.

There is a powerful synergistic effect between asbestos and tobacco in the

causation of lung cancer. Both are substantial contributing factors to the disease. The smoker with substantial asbestos exposure should receive less compensation from the trust fund than the nonsmoker with lung cancer. That principle appears throughout the bill. But smoking is not a reason to exclude the smoker from all compensation.

Without prolonged exposure to asbestos, the smoker would have been far less likely to contract lung cancer. It is a gross injustice to completely exclude these severely ill workers.

Any person who was exposed to asbestos for 15 or more weighted years and now has lung cancer should be eligible for compensation from the trust fund. It would not be automatic. Their cases would be reviewed individually by a panel of physicians to determine whether asbestos was a ``substantial contributing factor'' to their lung cancer. These 40,000 victims of asbestos should not be arbitrarily excluded from receiving compensation. They were included in the original legislation, it was agreed to by medical experts for both business and labor, and that provision should be restored to the bill. I will be proposing an amendment to rectify this serious injustice.

This bill also tampers with the agreed-upon medical criteria carefully negotiated between representatives of business and labor by raising the standard of proof for each disease category. The language in S. 852 requires the workers to prove that asbestos was ``a substantial contributing factor'' to their disease, instead of just ``a contributing factor.'' This is a major increase in the burden workers must overcome to receive compensation. It is significantly higher than most states currently require in a court of law. Rather than having to show that asbestos exposure contributed to their illness, they will now have to address the relative impact of asbestos and other potential factors. This change is a serious step in the wrong direction, raising the bar even higher on injured workers.

Another major shortcoming of this legislation is its failure to compensate the residents of areas that have experienced large-scale asbestos contamination. S. 852 simply pretends that this problem does not exist. It fails to compensate the victims of all asbestos-induced diseases, other than mesothelioma, whose exposure was not directly tied to their work. There is very substantial scientific evidence showing that the men, women and children who lived in the vicinity of asbestos- contaminated sites, such mining operations and processing plants, can and do contract asbestos-induced disease.

The reason that this legislation needs a special provision to compensate the residents of Libby, MT, is because it does not compensate victims of community contamination generally. The residents of Libby are certainly entitled to compensation, but so are the residents who lived near the many processing plants from Massachusetts to California that received the lethal ore from the Libby mine. The deadly dust from Libby, MT, was spread across America. W.R. Grace shipped almost 10 billion pounds of Libby ore to its processing facilities between the 1960s and the mid 1990s. One of the places it was shipped was to the town of Easthampton, MA, where the operations of an expanding plant spread the asbestos to the surrounding environment, into the air and onto the soil. I intend to discuss this problem in great detail as the debate moves forward.

I raise it now as a dramatic example of one of the major injustices caused by the arbitrary exclusion of a large number of asbestos victims from compensation under the trust fund. Nor is the problem of community contamination limited to the sites receiving ore from Libby. Community asbestos contamination can result from many different sources. For example, medical experts believe it may result from exposure to asbestos after the collapse of the World Trade Center. Because of the long latency period, we often do not learn about community asbestos contamination until long after it occurs. Certainly these victims of asbestos are entitled to fair treatment as well. They should not be arbitrarily excluded from compensation as if their suffering is somehow less worthy of recognition than the suffering of other asbestos victims. Yet that is what S. 852 does.

This is a bill that shifts more of the financial burden of asbestos- induced disease to injured workers by unfairly and arbitrarily limiting the liability of defendants. It does not establish a fair and reliable system that will compensate all those who are seriously ill due to asbestos. It lacks a dependable funding stream which can ensure that all who are entitled to compensation actually receive full and timely payment. These are very basic shortcomings.

We cannot allow what justice requires to be limited by what the wrongdoers are willing to pay. I intend to vote no and I urge my colleagues to do the same.

Mr. President, I yield the floor.