STATEMENT OF SENATOR PATTY MURRAY

JUNE 20, 2002

Senator Baucus, thank you for calling today’s hearing on Libby, Montana and on the health and environmental problems caused by asbestos contamination from the W.R. Grace vermiculite mine there. Thank you also for giving me the opportunity to testify before this Subcommittee. I applaud the leadership you have shown on this issue on behalf of the people of Montana and the entire country.

I first became interested in this issue in 1999 because of the series of articles by Andrew Schneider about Libby in the Seattle-Post Intelligencer. I can relate to the people of Libby because my mother grew up in Butte, Montana. Like Libby, the main industry in Butte is mining. I know first hand that these communities believed the government was protecting them from health problems caused by air and water pollution from mining.

I also became interested in this issue because Libby is only 160 miles from Spokane, Washington, and many people from Libby have received medical treatment in Spokane. Last year, when I chaired a Senate Health, Education, Labor and Pensions Committee hearing on asbestos exposure and worker safety, Dr. Alan Whitehouse from Spokane testified. He has treated about 500 patients from Libby. While most people thought only miners and their families could be exposed to dangerous amounts of asbestos from mining, many of his patients are sick just because they lived in Libby. Approximately 25 percent of his patients didn’t work in the mine or live with someone who did. Twenty-four of his patients have died in the last 3 years, and five who died were sick ONLY from environmental exposure.

The issue is also relevant to my constituents because like most other states, Washington has many sites which processed Libby vermiculite that was contaminated with asbestos. The chart you see displayed shows all of the sites in the United States which received vermiculite from Libby. Of the approximately 300 sites which processed this mineral, the Environmental Protection Agency (EPA) and the Agency for Toxic Substances and Disease Registries (ATSDR) have determined that 22 sites require further cleanup.

One of these sites is the former Vermiculite Northwest, Inc. and then W.R. Grace plant in Spokane. The plant began producing Zonolite insulation in 1951. Even though the plant closed down in the early 1970s, recent tests by EPA have found some soil samples from the site still have asbestos concentrations of up to 3 percent. EPA is strongly recommending that access to the site should be restricted almost 30 years after the plant closed down.

At many plants where vermiculite from Libby was processed, waste rock left over from the expansion process was given away for free. People used this free waste rock in their yards, driveways and gardens. The other picture you see shows Justin and Tim Jorgensen climbing on waste rock given out by Western Minerals, Inc. in Minneapolis, Minnesota in the late 1970s. According to W.R. Grace records, this rock contained between 2 and 10 percent tremolite asbestos. This rock produced airborne asbestos concentrations 135 times higher than OSHA’s current standard for workers. Thankfully, today neither Justin nor Tim has shown any signs of disease, but their risk of developing asbestos diseases, which have latency periods of 15 to 40 years, are increased from their childhood exposures.

Mr. Chairman I showed this picture several days ago at a press conference, and this morning I came into the office and received an email message from Izzi Jorgensen, who is the mother of the two boys in this picture. I want to read it to the committee this morning:

Greetings, Yes, please eliminate asbestos. Those two boys playing in the ‘free rock’ are my sons. Justin and Tim’s father Harris Jorgensen suffered long and hard with asbestosis and lung cancer. He died June 22, 1991 at age 44. An autopsy shows asbestos in his lungs. We lost the case in Federal court. Like Harris said “We may not have gotten anything out of this, but maybe it will help some one else.” At this time I wonder - Do my sons have to suffer also? It may be too late.

Izzi (Isabel) Jorgensen

Today, people may still be exposed to harmful amounts of asbestos in vermiculite. Between 12 million and 35 million homes and businesses may have Zonolite insulation. This may be the case for up to 150,000 homes in Washington. EPA has also tested agricultural products – soil conditioners and fertilizers -- made with vermiculite, and determined that some workers may have been exposed to dangerous amounts.

As I learned more about Libby, and how asbestos has ended up in products by accident, I was shocked to learn that asbestos is still being used in products on purpose. While some specific uses have been banned, the EPA’s more sweeping ban was never put into effect because of a lawsuit backed by the asbestos industry.

As a result, new uses of asbestos were banned, but most existing uses were not banned. Today, asbestos is still used to make roofing products, gaskets, brakes and other products. In 2001, the U.S. consumed 13,000 metric tons of it. Asbestos is still entering the product stream in America, despite the known dangers to human health. In contrast, asbestos has been banned in at least 20 other countries.

Now it’s time for the United States to ban asbestos, too. I want to ensure our government does all it can to minimize future suffering and death caused by asbestos. That is why yesterday we introduced the Ban Asbestos in America Act of 2002. Senator Baucus, thank you for being an original cosponsor of this important legislation. I also appreciate the cosponsorship of Senators Cantwell, Dayton and Wellstone.

The Ban Asbestos in America Act of 2002 has four parts which I would like to briefly mention. First, this bill protects the public by requiring the EPA to ban asbestos by 2005. Like the regulations EPA finalized in 1989 under the Toxic Substances Control Act (TSCA), companies may file for an exemption to the ban. EPA may issue the exemption if there is no substitute material available and the exemption won’t pose an unreasonable risk of injury to public health or the environment.

I’d like to take a moment to point out to the Subcommittee the connection between what happened in Libby and EPA’s efforts to ban asbestos. Last year, the EPA’s Inspector General conducted an investigation into why the agency didn’t do a better job of protecting the people of Libby. I was struck by one of the sections of the Inspector General’s Report, in which a letter written by EPA in 1983 is quoted as follows, “...asbestos-contaminated vermiculite is considered a lower priority at this time than problems posed by friable asbestos-containing materials in school buildings and commercial and industrial uses of asbestos.”

In 1979, EPA had issued an Advanced Notice of Proposed Rulemaking that it intended to explore options to control asbestos under Section 6 of the TSCA. In 1982, EPA issued a reporting rule under Section 8(a) of TSCA to gather information about commercial and industrial uses of asbestos. EPA’s proposed rule to ban asbestos was published in the Federal Register in January of 1986, and the final rule was published in 1989.

One of the reasons EPA did not spend more time focusing on asbestos-contaminated vermiculite was that the agency was working on the asbestos phase out and ban rule. Unfortunately, this rule was overturned by the 5th Circuit Court of Appeals in 1991. There is a clear relationship between EPA’s efforts to ban asbestos and the fact that problems in Libby were overlooked. I am saddened that EPA didn’t spend more time focused on Libby in part because of a competing effort to limit asbestos exposure -- an effort which ultimately failed.

Second, the bill requires EPA to conduct a public education campaign about the risks of asbestos products. We need to warn people that their home insulation -- if made with vermiculite -- may be contaminated with asbestos. While EPA has agreed to remove vermiculite insulation from homes in Libby, the agency currently has no plans to do this nationwide.

The Ban Asbestos in America Bill requires EPA and the Consumer Product Safety Commission to educate consumers about how best to handle this insulation within 6 months. The Ban Asbestos in America Act of 2002 also requires EPA to conduct a survey to determine which foreign and domestic products consumed in the United States today have been made with asbestos. EPA has estimated as many as 3,000 products still contain the mineral.

Third, the legislation invests in research, tracking and treatment of asbestos diseases. It requires a national mesothelioma registry, which would be coordinated with the A.T.S.D.R.’s existing efforts pertaining to Libby as well as with the National Institute for Occupational Safety and Health. The bill also authorizes funding for 7 mesothelioma treatment centers nationwide to improve treatments for and awareness of this fatal cancer.

Finally, the bill requires EPA to expand its Blue Ribbon Panel on Asbestos to address issues beyond the six regulated forms of asbestos, as EPA originally promised in its response to the Inspector General.

Over the years, asbestos has taken a staggering toll on our country. We have recently been reminded of the dangers posed by asbestos because of concerns about asbestos exposure from the dust and debris caused by the collapse of the World Trade Center Towers. Had this country acted swiftly to ban asbestos when public health evidence about its dangers first emerged, the Towers would not have been built with any asbestos at all. Now we’ll need to wait several decades to determine whether asbestos exposures in New York will cause asbestosis, lung cancer and mesothelioma for first responders and residents.

I hope this Subcommittee, which has primary jurisdiction over the Ban Asbestos in America Act, will consider holding a hearing on the bill in the near future.

Asbestos-Containing Products Risk Reduction Act of 2002

Sen. Patty Murray, D-Wash.

Legislative Summary

The U.S. has not banned asbestos:

Asbestos is a known carcinogen, and there is no known safe level of exposure. In 1976, Congress passed legislation to regulate toxic substances (The Toxic Substances Control Act). In 1989 EPA finalized regulations to ban asbestos under TSCA. In 1991, the 5^th Circuit Court of Appeals (New Orleans) overturned EPA’s final regulation to ban asbestos. The Bush Administration chose not to appeal the decision to the Supreme Court. As a result, new uses of asbestos were banned, but existing uses of asbestos were not.

Most industrialized countries have banned asbestos:

Asbestos will be banned throughout the EU by 2005, and outside of Europe, Argentina, Chile, Croatia, Iceland, Latvia, and Saudi Arabia have also banned the substance. The WTO recently upheld the right of France to ban asbestos, and the U.S. Trade Representative filed a brief supporting France’s right to ban the substance. The USTR brief states that chrysotile asbestos “is a toxic material that presents a serious risk to human health.”

Americans have been exposed to harmful levels of asbestos:

In Libby, Montana, workers and residents have been exposed to harmful levels of asbestos because of mining operations at the W.R. Grace vermiculite mine. Vermiculite from Libby was shipped for processing to 42 states, and federal agencies are currently investigating possible harmful exposures to asbestos-contaminated vermiculite at these sties.

Senator Murray’s Bill:

I. Bans the 6 regulated forms of asbestos (what EPA tried to do in 1989)

This section of the bill most closely resembles the regulations EPA promulgated in 1989. By January 2004, the EPA would propose regulations to outlaw the manufacture, processing, importation and distribution of asbestos-containing products. By January 2005, EPA shall issue final regulations banning asbestos-containing products.

II. Requires the EPA to Convene a Blue Ribbon Panel

In response to the EPA Inspector General’s report on Libby, Montana, the EPA promised to convene a Blue Ribbon panel on asbestos and non-regulated fibers. But the EPA has now narrowed the focus of the Panel to solely addressing the six regulated forms of asbestos.

Sen. Murray’s legislation would expand the scope of the EPA’s panel to include nonasbestiform minerals and other durable fibers. The panel will include participation from the Department of Labor and the Consumer Product Safety Commission. The Panel will be required to review the current state of the science on the human health effects of exposure to asbestos and nonregulated minerals. It will also review the current laws and rules in place to protect workers and consumers, and make recommendations for improving protections.

In addition, the Panel will address the need for uniform asbestos standards and protocols for detecting and measuring asbestos across federal agencies. Currently, asbestos is regulated under at least 11 different laws. The EPA’s Inspector General cited split jurisdiction and multiple standards as one of the reasons EPA didn’t do a better job of protecting the people of Libby.

III. Requires a Study on Asbestos-Containing Products and Contaminant-Asbestos Products

The purpose of the survey is to determine which products currently entering the product stream contain asbestos, either on purpose or as a contaminant. The EPA Administrator will be required to conduct this review with input from the Department of Labor, the Consumer Product Safety Commission and the International Trade Commission.

The legislation directs the EPA Administrator to conduct a study on the status of asbestos-containing products, such as roofing materials, brake pads, gaskets, which contain asbestos on purpose. EPA must also study contaminant-asbestos products, such as some insulation and horticultural products, which contain asbestos as a contaminant of another substance. The study will examine how people use these products still entering commerce and whether people are being exposed to harmful levels of asbestos.

IV. Requires a Public Education Campaign

Based on the results of the study, the EPA Administrator shall conduct a public education campaign to increase awareness of the dangers posed by asbestos-containing products and contaminant-asbestos products, including in homes and workplaces. The Administrator shall give priority to those products which pose the greatest risk, as determined by the study required by the bill. If the study determines consumers and workers aren’t being exposed to harmful levels of asbestos, an education campaign will not be required.

Regardless of the results from the study, EPA and the Consumer Product Safety Commission shall be required to conduct a national education campaign about vermiculite insulation within 6 months of passage of the Act. As many as 35 million homes and businesses may contain asbestos-contaminated insulation made with vermiculite from Libby.

V. Requires Additional Research

At least 2,000 people per year die from mesothelioma, a deadly cancer of the lining of the lungs and internal organs caused by exposure to asbestos. The legislation would direct the head of NIH to “expand, intensify and coordinate programs for the conduct and support of research on diseases caused by exposure to asbestos.” The Centers for Disease Control would be required to create a National Mesothelioma Registry to improve tracking of the disease. In addition, the bill creates 7 mesothelioma treatment centers in New York, Detroit, Los Angeles, Chicago, Philadelphia, Houston and Seattle to improve treatments for and awareness of this fatal cancer.