On a vote of 58-41, Senate proponents of S. 852, the asbestos trust fund bill, failed to muster the 60 votes necessary to waive a point of order raised against the bill. The final vote resulted from Majority Leader Bill Frist changing his vote from yes to no at the last minute in order to preserve his opportunity to ask that the vote be reconsidered. The vote stood at 59-40 until Frist changed his vote. The only senator not voting was Daniel Inoye (D-Hawaii), who was with his wife, who is ill. Frist said that if Inoye had been present, the likelihood was that the 60 votes would have been achieved. Excluding Frist, 10 Republicans voted to uphold the point of order.

Several senators contended that Inoye had committed to both sides and that proponents of the bill are not sure of the 60 votes, even with all 100 Senators present. The bill could be brought back to the floor for another vote as early as today. Chief sponsor of S. 852, Sen. Arlen Specter (R-Penn.), urged fellow Senators to waive the point of order and keep the bill alive in order to amend it.

The bill, which would establish a $140 billion trust fund to compensate victims of asbestos-related illnesses, has had a tortuous history. During consideration of S. 852 and its predecessor bill, NSSGA was successful in having the scientifically accurate definition of asbestos incorporated in the legislation. This definition excludes non-asbestiform minerals that do not present a health hazard. In addition, NSSGA has been working to eliminate a loophole that could allow plaintiffs to circumvent the asbestos trust fund and bring a lawsuit in court for exposure to silica. The association also has been in discussions with Sen. Diane Feinstein's staff on compromise language relating to her amendment to the bill requiring a study of ambient asbestos.

Opponents of the trust fund approach, including Sen. John Cornyn (R-Texas) said that they still hope to press for more limited legislation that would keep asbestos lawsuits in the court system, but force plaintiffs claiming exposure to asbestos to meet more stringent medical criteria than are required under the trust fund bill. An attempt on Feb. 9 to substitute the medical criteria approach for the compensation trust fund was unsuccessful. Cornyn pledged to keep trying to build support for this approach but admitted the window for action is closing.

Even if the asbestos bill ultimately is killed in the Senate, NSSGA is proactively involved in rulemakings and guidances on asbestos that are underway at regulatory agencies including MSHA, the National Institute of Occupational Safety and Health (NIOSH), and the Agency for Toxic Substances and Disease Registry (ATSDR).