Sen. John Kerry called for regulations mandating security measures at chemical plants yesterday, weighing in on a homeland-security issue that has been heavily debated since 9/11 nationally and in New Jersey, a center of chemical manufacturing.

Kerry blasted the Bush administration and Republicans in Congress for quashing chemical plant security legislation offered after 9/11 by Kerry and Sen. Jon Corzine (D-N.J.). Chemical industry groups had lobbied furiously against the new mandates.

"According to recent reports, al Qaeda-affiliated groups were planning an assault on a chemical plant in Jordan," the Democratic presidential candidate said. "The FBI has warned us that al Qaeda may attempt to launch conventional attacks on our nuclear and chemical industries. And of course our own leaders in Washington warned us that terrorists may strike again before the November election. What are we waiting for?"

Kerry called for requirements that chemical plants using the most dangerous materials have an "effective security force, a protected perimeter, and up-to-date surveillance."

"And while we will give these plants the lead in developing and implementing their security plans, we will stand ready to require better security under penalty of law," Kerry said, speaking to the National Conference of Black Mayors in Philadelphia.

Bush campaign spokesman Steve Schmidt accused Kerry of "playing politics with homeland security."

"John Kerry is calling for measures that the president has advocated and is contained in legislation already before the Senate," Schmidt said.

Kerry's campaign said he would require the Department of Homeland Security to review and certify vulnerability studies for chemical plants deemed high-priority targets. A Senate committee approved a compromise bill supported by Republicans in October 2003 that would require security assessments to be sent to Homeland Security, but would not require any formal certification or approval. That bill has not moved.

Corzine has been a vocal advocate of stricter chemical plant security since shortly after 9/11, when, on a flight into Newark Liberty International Airport, he was struck by the vast tank farms and chemical facilities in the area. Corzine reiterated his concerns in a conference call with reporters after Kerry's speech.

"It's really outrageous that nothing is moving in Congress and that the president and his folks have backed away from this," Corzine said. "It's really putting the people's interests behind the chemical companies' interests."

A spokesman for the Department of Homeland Security, Brian Roehrkasse, said the agency was not waiting for legislation to begin addressing chemical plant security, and it was already working with more than 300 of the most vulnerable facilities to harden their defenses.

New Jersey has eight facilities that could release clouds of toxic gas deadly enough to harm more than 1 million people in surrounding areas, including one in Kearny, the Environmental Protection Agency has said. There are 123 such facilities in the country.

There has been a vigorous debate in New Jersey over what the state should do to shore up chemical plants. Some activists have called for strict, statewide mandates, while the administration of Gov. James E. McGreevey has so far been content to let chemical industry groups enforce their own, voluntary security measures.

The Associated Press contributed to this report.

Air Quality Experts Decry New Bush Policy, by Elizabeth Shogren, Staff Writer, LA Times, April 29, 2004

WASHINGTON — Career government experts in the arcane field of air quality modeling have joined to oppose a new Bush administration policy that they say threatens air quality over national parks and wilderness areas.

In a rare internal protest, they contend that science is being manipulated to suit policy objectives.

The air quality modelers in all but one of the Environmental Protection Agency's 10 regions have told their bosses that they believe the policy, which alters the air quality modeling for North Dakota's national parks and wilderness areas, represents "substantial changes from past air quality modeling guidance … and accepted methods."

They also warned that the policy change "could set a precedent" for other regions, according to an internal EPA memo dated April 21.

Veteran EPA officials said the agency's modelers decided to take a stand against the policy because they were offended by what they termed the administration's efforts to use science to mask a policy change that would hurt air quality. They also were worried that the new policy would make it more difficult to protect the air over federal lands.

"I was aghast," said one of the modelers, who spoke on the condition that he not be identified.

The modelers said they decided to write the memo despite fears of repercussions.

"This is what our job is — to protect air quality," the modeler said. "If we don't speak up at a potential threat like this, what are we for?"

Bush administration officials involved in the new policy rejected the notion that they had altered the science to meet their policy aim.

"That's ridiculous," said Bill Wehrum, counsel to the EPA's air office. "Absolutely untrue.

"We've been accused of trying to give the state a break, but that's not the case."

The EPA's regional modelers and the analyses they produce are so deep in the agency's bureaucracy that they escape public notice. But their work can make a crucial difference in determining whether industries can increase pollution and whether the air will become clearer or more healthful.

"This is an unprecedented stand by career EPA scientists who are fighting for integrity in the basic foundation of EPA's air pollution control policies," said Vickie Patton, a former EPA career employee who is now an attorney for Environmental Defense, a national environmental group.

Analysts who follow the way the Bush administration has been running agencies that deal in science said the modelers' complaint echoed critics' concerns that the administration had adjusted scientific analysis — on issues from global warming to AIDS — to meet political objectives. The risk, they said, is that the public would begin to question the credibility of the government's science and the regulations that stemmed from it.

"Americans have great doubts about government in many areas, but where government has always been strong has been on the science," said Paul Light, a professor of public service at New York University. "There hasn't been a consistent perception of government manipulation of the facts. But this administration is doing considerable damage to public confidence in the facts."

Some veteran EPA officials said the case of the new modeling techniques for the air over North Dakota's national parks and wilderness areas was a perfect example.

"The modelers believe it was manipulated in a manner to give a predetermined answer," said another longtime EPA official, who also spoke on the condition of anonymity. "Much of the concern of the modelers is that the agreement that was reached with the state of North Dakota allows them to manipulate the data in a way that will demonstrate less of an impact [from polluting power plants] than was actually occurring."

The Clean Air Act provides special protection for the air over national parks and wilderness areas, allowing only minor increases in pollution. Modeling done by EPA's Region 8, which includes North Dakota, found that pollution in the state had increased since 1977, the baseline year, and that the state would have to force reductions in pollution before it could allow more power plants to be built. The state, which has ample supplies of coal, wants to open more plants so it can produce and export energy to other areas.

The modelers specifically criticized the new policy for allowing the state to choose the year it wants as the baseline, which shows whether pollution has increased more than the minimal amount allowed; the higher the pollution in the baseline year, the more pollution that will be allowed in the future. A 2002 analysis by the EPA's Region 8 suggested that allowing facilities to pick their baseline years could more than double the pollution levels.

But administration officials said they let the state pick the baseline years because regulations allowed them to do so.

The EPA modelers also criticized the policy for letting state modelers use average emissions over the whole year, rather than periods of peak emissions.

But Bush administration officials countered that they opted to use annual emissions because there were no good data on peak emissions days from the late '70s.

What troubles the modelers most is that the changes the administration made to modelers' general practice all appear to allow higher levels of pollution. That, in turn, opens the way for the state to allow more power plants without requiring costly pollution controls on existing facilities.

"If you rearrange your science to fit your goal, that's not really science," said the first unnamed EPA official.

But a director in the EPA's office of air quality, planning and standards, Bill Harnett, disagreed.

http//www.thevillager.com/villager_52/trustfundcould.html

The park’s estimated price tag is $400 million, and the $200 million allocated for the park by the city and state — $100 million from each — is almost used up.

For several years, park activists have sounded the alarm, raising fears that the park’s Greenwich Village segment, which opened last summer, may be the only section that gets built, while the Tribeca, Chelsea and other sections of the five-mile-long park will be left as barren asphalt strips along the waterfront with dilapidated piers unsafe for public use.

But there could soon be a sea change in the park’s finances. The Hudson River Park Trust, the organization building and operating the park; politicians; and Friends of Hudson River Park, the park’s main advocacy organization, are now all pulling together to secure the needed funds. The fundraising blitz is being waged at all levels of government, city, state and federal.

Connie Fishman, the Trust’s new president, said that within the past month, New York’s two senators, Hillary Clinton and Chuck Schumer, supported a request by Mayor Bloomberg and Governor Pataki to seek federal funding for the park through the Waterfront Resources Development Act.

Fishman said the WRDA (pronounced "warda") bill, which was supposed to have passed last year, is still in committee in the Senate. The House passed its own version of WRDA last year. The Trust doesn’t anticipate getting the full amount but hopes for something.

"The request was for $115 million," said Fishman. "They won’t give you that much — but why not ask?"

Privately, some say it’s realistic to expect the park might get $20 million from WRDA.

There is no request for funds for Hudson River Park in the House version of the WRDA bill, which was passed last year.

"The governor’s office asked us the night before the bill was going to go to the floor if we could put a request in — but it was just too late," said Jennie McCue, a Nadler aide. "Congressmember Nadler is very supportive, but there wasn’t enough time."

McCue said the Senate should consider the WRDA bill in the next few weeks, and the two versions of the bill will then be conferenced to iron out the differences, during which time Nadler will try to get the request for Hudson River Park into the House version.

"Congressmember Nadler will do all he can to get it into the bill," McCue said.

In 2000, Pataki wrote a letter in support of getting WRDA funds for the park, but it didn’t pan out. Some questioned then how hard he pushed for the funds.

Asked how much more money the Trust needs to finish the park, Fishman said $200 million.

The Trust has also requested $70 million from the Lower Manhattan Development Corp., the agency doling out money for post-9/11 recovery and rebuilding projects, to build the park’s Tribeca segment.

"We’re just waiting to hear," Fishman said of the L.M.D.C. request. "They haven’t put us on their monthly agenda, and without being on their monthly agenda, they can’t vote on it."

Joanna Rose, an L.M.D.C. spokesperson, said of the Trust’s request, "It’s under consideration." Rose noted the L.M.D.C. already made a commitment of $25 million for 12 park projects in Lower Manhattan, for restoration of existing park spaces and building new parks. Asked whether the Trust’s request for the Tribeca segment would be heard at the corporation’s May 27 meeting, she said she couldn’t say.

Albert Butzel, president of Friends of Hudson River Park, said the lobbying effort has also been occurring at the city and state levels. Under Speaker Gifford Miller, the City Council has come out strongly for the park, allocating $50 million for the project in its current budget. Meanwhile, the mayor, who announced his budget Monday, has allocated $10 million for the park. The Council and mayor must reconcile the two amounts in the final budget. Butzel hopes Mayor Bloomberg ups his ante.

"It would be nice to get it up to $50 million, but if it was $20 million, that would be nice," offered Butzel.

In the state budget, where more legislative bodies negotiate on the budget, expectations are a bit lower for Hudson River Park funds. Like the mayor, the governor in his budget has proposed $10 million for the park. The State Senate has also budgeted $10 million for the park. Butzel said the Friends are lobbying Pataki and Senate Majority Leader Joe Bruno to bump up this amount, hopefully to at least $15 million.

As for the L.M.D.C. funds for the Tribeca segment, Butzel said, "We’re all expecting it to come. But the longer the wait, the more the concern. We’ve been waiting two years."

Butzel said the full-court press for funds, especially federal funds, comes from necessity.

"Now the park has no money — everyone’s behind this," Butzel said. "For five years, everyone knew they were going to run out of money this year. Now we have two senators there and we have a substantial voice; they’re on powerful committees."

Schumer and Clinton also made a request for $25 million for building the Hudson River Park esplanade in the current annual federal transportation bill, but it failed.

 Change at the trust

The active push for more cash came after Fishman took over as president of the Trust in January, following the departure of Rob Balachandran, the Trust’s former president, for the private sector.

"Connie is doing a good job," said Butzel. "The fact that she’s been down to meet with Schumer and Clinton’s staff is terrific. It’s going to take time, but I finally think things are finally back on track. Connie, when she came to our board meeting, said her priority is to get the park built."

In the past, the issue of requesting federal funds was problematic because of fears it would require an environmental impact study under the National Environmental Review Process. The study, it was feared, would slow down the start of construction on the park.

Nadler made waves in 1998 when he advocated seeking federal funds for the park, for which he said a federal E.I.S. would likely be needed. Park advocates were angered, fearing a lengthy study.

Said Linda Rosenthal, a Nadler aide, "Jerry was trying to get the funds and the governor and the Trust said No because there would be another E.I.S. Even if it caused another E.I.S., the E.I.S. would have been done by now. We didn’t think it would have necessitated an E.I.S."

"That was a long time ago," said Butzel, recalling the disagreement with Nadler. "We wanted to get the park going. It’s different now They’re working through the Senate, the park is a lot further along, the governor is behind it — there’s a lot more coordinated effort."

Four years ago, the Army Corps of Engineers, before issuing a permit for the park’s "in-water" work — rebuilding of the piers and bulkhead (seawall) — had to determine if a full-scale federal environmental impact study would be needed.

The Corps found the park’s impact would not be significant and only required a relatively short environmental document to be done. As a result, based on the Corps’ previous ruling, Butzel said, if park funds are allocated under WRDA, it’s unlikely a major federal E.I.S. would now be required.

Then there are also the major piers that are to be redeveloped by private developers. Butzel said there are hopeful signs at Pier 40, the 15-acre pier at W. Houston St. He said he believes the Trust is looking to issue a request for developers for the pier by the end of the year. The Trust’s last effort to redevelop the pier with a park ended last year without a developer being chosen.

Also, a developer is expected to be chosen for Pier 57 in Chelsea by this summer.

Chris Martin, the Trust’s spokesperson, did not respond to questions about Pier 40 by press time.

 Fan of federal funds

Tom Fox, who was the first president of the Hudson River Park Conservancy, the Trust’s predecessor, from 1992-’95 and who was on the early planning committees for the West Side waterfront’s redevelopment, said he called for federal funds as early as 1986.

"We assumed early on that it would be $100 million, $100 million and $100 million — from the city, state and federal government," Fox said.

However, he recalled of the former opposition to funds from Washington, "There was fear of NEPA, and there was still controversy over the park and there was a reluctance from the city and state to have the feds involved."

Fox had another idea to generate revenue for the park that never got adopted a tax on inboard real estate value in the area between 14th and 59th Sts. and 12th and 10th Aves. This tax of $3 to $5 per sq. ft. would have been an assessment on the amount real estate would have benefited from being near the new park, and would have applied to the new high-rises, for example, now sprouting on the Village waterfront.

"You’re seeing this with Greenwich Village right now," said Fox. "There would have been a park tax, if you will, where we could capture some of the appreciation that would be happening as a natural effect of the park."

Fox, who today runs New York Water Taxi and is a Friends board member, estimates this tax would have netted the park $80 million to $100 million.

Nevertheless, his hopes are high the Trust is at last taking the right approach for getting the rest of the funding.

"Connie now is taking a very active role in going to Washington and pleading her case," Fox said. "It just didn’t happen before. She’s doing a very good job.

The other day, the tunnel and two trains inside began filling with smoke. The 50 or so people on board one of the trains calmly formed a line to file out the back.

"Watch your head," said a beefy man stationed by the door, as people descended one by one down a narrow stepladder to the roadbed.

When everyone had made it safely, the group turned around to do it again.

It was all a charade, of course. The subway tunnel is actually an elaborate mock-up, part of a training center that opened in 1997. The smoke comes from a machine usually found on movie sets. Here, train operators, conductors, station agents and other employees of the nation's busiest mass transit system, the New York City subway, practice for the worst.

Although the need to evacuate subway trains because of fires or other problems has always been a part of travel underground, the training that goes on here has taken on newfound importance in a jittery world of orange alerts and terrorist threats.

"There is a higher sense of, 'Boy, I could be in this,' " said Rocco Cortese, assistant vice president of training for New York City Transit. "Everybody's starting to realize that."

Partly because of terrorism concerns, transit officials are planning to offer the daylong fire safety and evacuation training sessions to more workers and make those who have already gone through it do so more often.

Train operators, conductors and station agents all get the training when they start their jobs, but only train operators are required to go through refresher courses every three years. Beginning May 1, officials will make conductors do the same. They are also considering training car cleaners, track workers and employees in other departments, in case they need to help in an evacuation.

The measures are long overdue, according to leaders of Local 100 of the Transport Workers Union, who have been pushing for more training.

"There can never be too much training, obviously, in today's world, especially after what happened in Madrid, what happened in Tokyo, the attacks on our city," said Jimmy Willis, a conductor and union official. Mr. Willis, who said that he has been through the evacuation training once in his 16 years on the job, supports putting employees through it at least once a year.

Transit officials point out that they have been steadily expanding training of all kinds, especially in recent years. Decades ago, safety training was mostly informal, passed on from one worker to another. During the 1980's, with the emergence of stricter standards from the federal Occupational Safety and Health Administration, training became more formalized and centralized in a single department. Evacuation training, however, was done out in a train yard, on an old subway car.

The opening of the training center represented a huge step forward, allowing the transit agency to build in a realism it did not have before. After Sept. 11, 2001, agency officials revamped an introductory class for new employees to teach awareness of nuclear, biological and chemical threats. And last year, officials also added a 40-hour hazardous materials training course, again for designated workers.

The agency is trying to be methodical by making sure it has the resources to sustain new programs so the additional training will be effective, said Art Basley, senior director of safety training.

"You don't want to start doing something you can't see through," he said.

In the evacuation training, the students start out in the classroom, with an instructor going over procedures from a manual. Much time is spent on keeping passengers calm. The manual reads "Good, clear communication to all involved is essential in controlling panic." Also "Keeping customers informed of the problem, using a clear, authoritative voice and timely announcements will help keep panic to a minimum."

"You're really going to need to put on your acting faces," said Jim Leckie, an instructor, to his students. "They're going to be looking for an authoritative face."

Later, the students move inside the warehouse, where a pair of old trains sit side by side. Mr. Leckie starts out by demonstrating how to contact the subway system's control center from the emergency alarm boxes that are mounted under blue lights along the tracks. A worker has to pull a lever, which triggers a ticker-tape printout in the control center that identifies the location of the box. Then, he or she has to pick up the phone immediately and tell the desk superintendent to shut off the power to the electrified third rail.

If the phone is missing or does not work, Mr. Leckie tells his class to take the lever and "pull it a second time, pull it a third time." That way, the control center will know it is not someone in the tunnel pulling a prank.

Even after the power is cut, however, workers should always still assume the rail is "hot," Mr. Leckie said, and try to keep riders away from it. Mr. Leckie moves quickly on to discussing the evacuation of passengers from the train to the roadbed. But this, he said, should be done only as a last resort.

Again, he warned his students about panic.

"Panic inside the car is one thing," he said. "Panic on the roadbed is another."

Next, the students practice a train-to-train evacuation. This is normally the first choice in an emergency so that riders would not have to plunge into the tunnel. Whenever possible, a rescue train would be sent into the tunnel and line itself up alongside the train that needs to be evacuated.

Mr. Leckie positions two students at the entrance of one car and two students across the narrow gap in the other car and has them link arms to form what he calls a "human banister." A yellow emergency device with a stepladder on one side and a ramp on the other bridges the gap between the trains.

Once again, the students line up to file out of the train. By now, however, the smoke is thick, limiting visibility to less than 15 feet. Suddenly, the lights go out. Several students turn on flashlights.

"I'm afraid of the dark," one man jokes.

At this point, Mr. Leckie pauses to talk to his students about what to do if, for instance, a person in a wheelchair is on the train, since a wheelchair cannot fit onto the emergency ramp.

"Our main concern is to evacuate as many people as possible, as quickly and safely as possible," he said, telling his students to move the handicapped person off to the side and provide assurances that "help is on the way." The rider would probably have to wait for firefighters to arrive.

In the darkness, Mr. Leckie walks his students through the last drill of the day, what is known in transit parlance as "train-to-benchwall," meaning from the train to the narrow walkway that runs along the side of subway tunnels.

He tells the transit workers to take their right hand and place it on the shoulder of the person in front of them. Leave the other hand available, he said, to grab hold of the railing. The hands on the shoulders, he said, would help keep panic to a minimum. Like a conga line, the group shuffles out of the train on cue.

"Are they sending help?" someone asks.

The group shuffles through the smoke down the catwalk, out a door and up some steep steps to fresh air.

Just like that, the exercise is over. It took less than an hour.

Afterward, Ralph Boozer, 45, with 21 years on the job, said that he would be ready if something happened. Two decades ago, he had to evacuate 2,000 people on a packed train when a train in front of his caught fire. Also, during the blackout last summer, he had to evacuate his train because it was caught inside a tunnel.

But Glen Burnett, 52, another veteran train operator, worried about overexcited passengers inciting panic. All it takes is one, he said, and pandemonium follows.

On a train, the only people who are trained to handle most emergencies are the conductor and the train operator, he said. "It's two against 2,000."

It is that kind of hysteria that cannot be replicated in any drill, said O'Neal Barno, 40, another train operator. He is not sure if the short class has prepared him.

"Hopefully, it does," he said. "But to be honest with you, I don't think so."

The consensus among many transit workers, he said, is that a terrorist attack against the subway system is inevitable. As a result, the classes have changed markedly over the years.

An EPA advisory group, the World Trade Center Expert Technical Review Panel, met April 12 and rejected the agency's plan to re-sample areas in lower Manhattan the agency has already tested for toxic dust and other contaminants. An EPA spokesperson says the agency is now planning a more comprehensive testing effort, the details of which will be discussed by EPA's top science advisor Paul Gilman at the panel's next meetings on May 12 and 24. The panel is co-chaired by Gilman and a leading environmental health expert, and consists of academics and federal and New York state public health officials.

An EPA official says the agency is planning a new sampling program that extend[s] the geographical boundaries of the testing by addressing previously untested residences, commercial spaces, schools, and firehouses. The program will be expanded to address pollutants other than asbestos, including lead and dioxin. EPA also plans to seek testing data from areas where federal officials do not have access, such as privately owned commercial space, and to request that additional sampling be conducted.

Attorneys who filed a class action lawsuit March 10 on behalf of residents of lower Manhattan say the new testing program could support their allegations that former EPA Administrator Christine Todd Whitman jeopardized residents' and emergency workers' health by stating that the air near Ground Zero was safe to breathe. The lawsuit seeks compensatory damages for the costs of cleanup, expanded testing and a medical monitoring program for those exposed to dust from the collapsed buildings.

The new tests will provide evidence giving us more fuel, says an attorney with the New York Environmental Law & Justice Project, which is representing several New York City citizens in the suit.

Another attorney involved in the case says efforts to go back and re-clean and re-test the entire area are the kind of thing we're requesting in the lawsuit. EPA's decision to broaden testing is consistent with some of the citizens' demands and tends to validates our claims.

Agency and outside experts say the decision to expand testing to commercial and previously untested areas is a major change in EPA's actions at the site. It's a significant expansion, says one expert involved in the panel's review, who adds the new tests may raise other public health issues, including lead level findings in residences.

A more comprehensive testing program will allow EPA to examine for the first time just what it is we're dealing with in dust related to the WTC collapse -- an analysis EPA conducts routinely for Superfund sites but did not do at Ground Zero, a member of the expert panel says.

EPA's response to the attacks has come under criticism from New York residents, environmentalists and several key lawmakers, including Rep. Jerrold Nadler (D-NY), who represents lower Manhattan, and Sen. Hillary Rodham Clinton (D-NY), who requested that the expert panel be formed.

An attorney involved with the lawsuit against EPA and a staffer for Nadler say that while the expanded testing effort is welcome news, it will not affect pending compensation claims. The EPA announcement will not undercut the citizens' effort to seek damages, the Nadler source says. People have been exposed for two and a half years, the source says.

EPA has rejected local residents and some New York City officials' claims that the agency did not do enough immediately following the attacks, with the agency arguing that it lacked the authority to require testing in commercial businesses and firehouses, for example.

According to one plaintiff's' lawyer, EPA had earlier refused to address public health concerns at schools and firehouses, selectively choosing less stringent regulations and risk criteria to limit its response to the attacks. For example, EPA said it did not have authority to require testing in firehouses, since they involve occupational risks, the attorney says. As a result, health risks to firefighters may have doubled because of continued exposure to indoor contaminants, the source says.

The attorney also claims that EPA averaged the levels of contaminants found throughout various schools to achieve a safe figure -- ignoring schools that exceeded the agency's own actionable level, the source claims. They always seemed to take the [least restrictive] limit.

But one scientist who is consulting with the panel says that while the agency's assumptions about possible risks are worth questioning, they were often understandable given methodological difficulties associated with sampling and existing background levels of contaminants.

The source says the upcoming tests will likely produce a mixed bag of risk findings, with some buildings being unexpectedly clean and others with elevated lead and asbestos levels, depending on if and how the building was cleaned.

Panel members suggested EPA conduct a more comprehensive program after concluding that EPA's earlier proposal would not provide enough data for the agency to confidently answer questions about outstanding risks to New York residents. You need a very large sample size because of the likelihood of low participation in the study, one panel member says. EPA is also likely to have trouble distinguishing background levels of dust in buildings from the low levels associated with dust from the WTC, the panelist says.

     Back to Top

UPDATE 2-U.S. Senate halts bill to create asbestos fund, by Susan Cornwell, Reuters, April 22, 2004

The action on a procedural vote disappointed Republican sponsors who want to rein in hundreds of thousands of asbestos lawsuits they say are crippling businesses.

It also marked another failure in a broad Republican effort to make changes in tort law. Other bills recently barred by the Senate included caps on malpractice damages and curbs to class action lawsuits.

Senate Republican Leader Bill Frist said after the vote his party would not give up, and some Democrats showed interest in compromise. Talks were expected to resume in the coming days.

But Utah Republican Sen. Orrin Hatch, who sponsored the bill with Frist, said time was short in a busy election year.

"If we don't get that (consensus) done in another week, it seems to me that this bill is going to be dead," Hatch said. There is no comparable legislation in the House, which has been letting the Senate take the lead on the issue.

Critics said the proposed fund of up to $124 billion was inadequate to pay claims from people sickened by asbestos.

The fund was to be financed by asbestos defendants and insurers. Democrats say it would total only about $109 billion -- only about one-third of what might be needed according to some estimates, Senate Democratic Leader Tom Daschle said.

"Republican sponsors are insisting on compensation levels which are far below what they (asbestos victims) deserve ... It reflects only what the companies who made them sick are willing to pay," said Massachusetts Democrat Sen. Edward Kennedy.

Asbestos was widely used for fireproofing and insulation until the 1970s.

Scientists say inhaled fibers are linked to cancer and other diseases.

Companies have paid an estimated $70 billion on some 730,000 asbestos personal injury claims, making it the most expensive type of litigation in U.S. history, according to the RAND Institute for Civil Justice.

Hatch has sought for over a year to build a consensus on a national asbestos fund. But on Thursday he could only muster 50 votes for bringing the bill to the floor, when 60 votes were needed. Forty-seven senators voted against.

Some Democrats agree with the approach in principle, but called the bill a "bailout" for companies like oilfield services giant Halliburton Co (HAL.N Quote, Profile, Research) . Its pending $4.3 billion asbestos settlement would have been nullified by the bill.

Senate aides said further talks would be mediated by Edward Becker, a federal judge who has led discussions of business, insurers and labor officials over details of an asbestos fund.

Republicans alleged that Democrats are beholden to trial lawyers who can get up to 40 percent of asbestos compensation costs, and are big donors to the Democratic party.

Democrats, Hatch charged, were unwilling to "deprive personal injury lawyers of their huge cash cow."

© Copyright Reuters 2004. All rights reserved. Any copying, re-publication or re-distribution of Reuters content or of any content used on this site, including by framing or similar means, is expressly prohibited without prior written consent of Reuters.

http//www.thehill.com/story.asp?id=192

The vote went along party lines, with only one Democrat—Zell Miller of Georgia—joining the Republicans in favor of cloture.

Democrats who opposed the bill said the fund would be too small to pay all victims of exposure to asbestos, the fire-proofing material shown to cause respiratory problems and cancer.

In recent weeks, several lawmakers on both sides have questioned GOP leaders’ strategy of forcing a vote on the issue, which manufacturers, insurers, trial lawyers and organized labor have been debating for several years.

"The outcome of this afternoon’s cloture vote in the Senate comes as no surprise," Dirk Van Dongen, head of the National Association of Wholesaler-Distributors, said in a statement. "Even had the Senate voted for cloture on the motion to proceed, S. 2290 faced a long and difficult, perhaps impossible road to passage."

Many industry groups supported the legislation, which would take asbestos-related lawsuits out of the legal system. In the last several decades, thousands of asbestos cases have bankrupted dozens of companies.

"We call on all senators who opposed proceeding on the bill to work constructively with their colleagues toward resolving the asbestos litigation nightmare," said Mike Baroody, chair of the Alliance Steering Committee and executive vice president of the National Association of Manufacturers.

Senate Majority Leader Bill Frist (R-Tenn.), who helped draft the legislation, and Minority Leader Tom Daschle (D-S.D.) are expected to continue negotiations on asbestos in the hopes of reaching an agreement this year.

But many trial lawyers, labor unions, and consumer groups opposed the bill. They said the trust fund, which would have been $124 billion under the Republican plan, needed to be at least several billion dollars more.

http//www.greenbaypressgazette.com/news/archive/local_15777715.shtml

Environmental contamination released by the terrorist attacks on the World Trade Center and the government’s failure to recognize it as a public health emergency will add to the Sept. 11 victim count in coming years, a former EPA official said in Green Bay on Monday.

"You’re not only going to see effects a decade or two from now," said Robert Martin, former ombudsman for the federal Environmental Protection Agency. "You’re going to see them within three to five years."

The Bush administration and the EPA assured the public that no serious health risks were associated with the release of toxic materials in the days after the collapse of the twin towers — a claim that subsequent testimony in public hearings showed to be incorrect, Martin said.

"I heard testimony that, based on those assurances, a lot of respirators were not worn by first responders," Martin said.

The human toll from toxic chemicals and microscopic particles of asbestos and other contaminants released into the air when the towers collapsed may take years to develop but will happen, just as in industrial workers exposed to contaminants in the workplace, Martin said.

Martin initiated the public hearings on the health risks endured by emergency workers at the World Trade Center site in New York City, and ordinary citizens living and working near the site, in early 2002 as EPA ombudsman for hazardous and solid waste.

In a meeting Tuesday with Press-Gazette staff, Martin detailed his role in the Sept. 11 hearings that turned out to be his last case in a 10-year career.

He began in 1992 in the administration of the first President Bush.

Martin resigned shortly after the hearings on Earth Day in April 2002 after fighting to keep his job, which was eliminated by then-EPA administrator Christine Todd Whitman.

Green Bay was one stop for Martin, who lives in Florida, in a tour of the state to mark the celebration of Earth Day, which is Thursday.

Martin said he’s hopeful that legislation being considered by Congress that would restore the EPA ombudsman position will become law.

But Martin said the suppression of information about the health risks in New York City following Sept. 11 were indicative of a shift in EPA management by the administration of President Bush, which he said was "in denial" about environmental problems.

prebhahn@greenbaypressgazette.com

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One of Bush's first TV ads of the season was another example of his exploitation of New York. It contained footage of New York firefighters carrying the remains of a dead co-worker on a gurney draped with an American flag. The image was an icon of the carnage. Scores of 9/11 widows and firefighters condemned the ad's poor taste and hypocrisy. As Jimmy Breslin wrote in Newsday, "In his first campaign commercial, George Bush reached down and molested the dead."

There are many ways in which the Bush Administration has attempted to strangle New York. The most telling has to do with its treatment of the city after the September 11 attacks. But there are others that show the extent of Bush's contempt not just for New York but, by implication, all of urban America.

In the first round of homeland security funding, in 2003, New York--twice targeted by terrorists, in 1993 and 2001--received 25 percent of the total of $100 million, which was divided among seven cities. In the 2003 supplemental budget, New York's share had shrunk to 18 percent, and the money was split among thirty cities. By last November, when New York City Police Commissioner Raymond Kelly said in testimony before Congress that New York was being shortchanged, the city's share had dwindled to less than 7 percent, and the money was divided among fifty localities.

The most at-risk city in America had been cut by two-thirds. Homeland security money has become another run-of-the-mill pork-barrel patronage operation, like highways. Kelly says, "The credible threat of terrorism is considered a secondary factor in Washington in the way homeland security funding is allocated."

In February Bush proposed an increase to $1.4 billion in homeland security funding for so-called "high-risk cities." But fifty cities are still designated as high risk, so New York's share is only $94 million--a fraction of what is needed. On a per capita basis, New York State ranks forty-ninth among the states in antiterrorist funding, far below rural, sparsely populated Wyoming, Montana and North Dakota. According to the New York Daily News, New York is also forty-ninth in per capita funding among cities $5.87 per person. Compare that with $35.80 for Pittsburgh. But then, Tom Ridge was governor of Pennsylvania. Or look at Florida, where Jeb Bush is governor. Miami gets $52.82 per person. Orlando gets $47.14--as if Disney World is a bigger terrorist target than the New York subway system, the United Nations, the Stock Exchange, Times Square, JFK Airport, Yankee Stadium on opening day, or our reservoirs and water system.

What's the biggest recipient of any US city, at $77.92 per person? New Haven, Connecticut. Is Yale a high-priority target because both Bushes are alumni?

Or consider the Bush Administration's treatment of first responders. It has recently eliminated its only program providing funds for upgrading police and fire department radio communications. On 9/11 the FDNY's radios did not function.

Warnings over police radios to evacuate the towers immediately were not received by the firefighters trying to rescue trapped office workers. On that one day, 343 New York City firefighters died, and about 120 of these deaths have been attributed to the futile radio transmissions.

Since this catastrophe, New York's firefighters have emerged as international symbols of bravery, suffering and grief. Tourists still visit firehouses to offer condolences and leave flowers. George Bush famously embraced a firefighter on his visit to Ground Zero right after the attack. Bush has displayed members of the FDNY in the gallery at his speeches, wrapping himself in the glory of first responders.

But now, his Homeland Security Department has killed a federal program to integrate police and fire communications systems; New York will lose $6 million. Bush and Ridge have announced a $200 million cut in similar programs for next year, and a cut of 33 percent in the Assistance to Firefighters Grant Program.

The FDNY has requested $250 million from the Bush Administration for the next three years for antiterrorist equipment and technology. The NYPD has requested $261 million. But according to NYPD testimony last November, the city has received less than $60 million so far--for all first-responder agencies. Fire Commissioner Nicholas Scoppetta says, "We definitely need more federal funding to be adequately prepared for bioterrorism, dirty bombs and radioactivity. We need equipment and training for these new horrors."

The FDNY has only one dedicated hazardous materials unit for the entire city of 8 million. Meanwhile, the fire department in Zanesville, Ohio (population 25,600), has federally funded thermal imaging technology to find victims in dense smoke and a test kit for lethal nerve gases. The FDNY is still asking for radios that work in a crisis.

New York's Congressional delegation is now trying to pass legislation to limit to fifteen the number of cities that qualify for homeland security funding. This seems the only way New York will get its fair share.

Before I get to how Bush screwed New York on healthcare, education and housing, let me emphasize All American cities are getting shortchanged and stiffed. Bush is not just targeting New York; he has no urban policy at all. And make no mistake--New Yorkers are the crash-test dummies; if we survive a crushing budget cut or the elimination of a program, then it is replicated throughout the country.

Every American city began to suffer when the federal government stopped building housing for low- and moderate-income people while Ronald Reagan was President. San Francisco suffers from transportation funding formulas that favor highway construction over subways. Denver, Phoenix and Los Angeles suffer from pro-polluter environmental policies. And all cities, all poor people and most middle-class families have been damaged by the Bush tax cuts for the wealthy. These tax cuts are the invisible hand driving all budget decisions. They give Bush an excuse for underfunding VA hospitals, Pell Grants for higher education, school lunches, job training and adult literacy. This is what New York Senator Daniel Patrick Moynihan called "starving the beast"--depleting the federal treasury, because the right wing thinks of the federal government as an enemy beast. The deficit is the politically salable excuse for miserliness.

The tax cuts for the rich rob the treasury of the money all cities need to address what John Edwards called the afflictions of "two Americas"--two public school systems, two healthcare systems, two tax systems. Because New York has such a disproportionate concentration of poor people, we are more vulnerable to Bush's neglect. New York City has nearly 1.7 million people living in poverty.

Thirty percent of children are living in poverty, compared with 16.5 percent nationwide. New York has 966,000 residents on food stamps. A February study by the 156-year-old Community Service Society revealed that in 2003 only 51.8 percent of black men in the city between the ages of 16 and 64 were employed.

But as far as the Bush White House is concerned, every dollar spent on the poor is one less dollar for the deserving rich. In The Price of Loyalty, Ron Suskind quotes Vice President Dick Cheney's rationale in 2002 for more tax cuts "We won the midterms. This is our due."

One example of Bush's contempt for New York, and all urban areas, is the latest Medicare bill. Passed by the House last November only after the usual fifteen-minute roll-call period had been stretched to almost three hours to allow GOP leaders to whip several members of their party into line, the bill is especially damaging to New York, where poor people depend on teaching hospitals for care. The law's funding formulas give preferential treatment to rural hospitals and to states with less dense population patterns.

New York State will receive only $480 million from 2004 to 2013, with only $80 million of that going to New York City. In contrast, Texas, home of House majority leader Tom DeLay, will get $1.1 billion, Alabama $738 million, Louisiana $554 million, Tennessee $655 million, North Carolina $576 million and Florida $741 million.

New York City not only has the biggest population in need in the country, and the highest cost of healthcare, but also the most hospitals in economic distress--forty-five. Dozens of cash-starved New York hospitals are now in jeopardy of closing.

One reason for the inequities was that Harlem's Charles Rangel, New York's senior Representative, was excluded from the key House-Senate conference that engaged in the final bargaining. "The conference was run like a private club that would not let me in," Rangel said. Ted Kennedy, the Senate's leading expert on healthcare, was also exiled from the conference. The only two Senate Democrats in the conference were John Breaux of Louisiana and Max Baucus of Montana, both of whom supported Bush on the bill.

Hospital administrators say that New York City should have gotten at least $400 million more if need, cost and population had been fairly taken into account. The bill made a 15 percent cut in payments to teaching hospitals, which are concentrated in New York City. In practice, this is a 15 percent cut in healthcare services for the poor and elderly, who depend on Medicare.

On top of this targeted shot at New York, the Medicare bill also did nothing to lower the cost of prescription drugs, made it harder for citizens to purchase American-made drugs at lower prices in Canada, included a drug benefit that does not cover the middle class and postponed implementation of the new prescription drug program until 2006.

George Bush's education initiative, No Child Left Behind, exists in the same parallel universe as his Medicare bill. It is a PR scam that actually makes things worse, and disproportionately injures New York. NCLB created higher standards and rigorous testing, and imposes sanctions on those schools that don't improve. But given all the city's problems, New York's schools cannot meet these new federal mandates without the funds they were promised when Bush signed the law. Bush underfunded NCLB by $8 billion in 2003 and 2004--that is, the money was authorized by Congress but never allocated by Bush.

New York City is the biggest recipient of Title I funds in the country--Title I being the largest federal program put under the NCLB umbrella--with 900 out of 1,200 schools eligible. New York City schools were deprived of $1.2 billion by Bush's miserly manipulations. A study released by New York City Representative Anthony Weiner showed that Title I schools in New York City lost $657 million, disabled pupils lost $513 million and teacher-training programs lost $39 million. There was $17.5 million less for computers in poor communities, and $12 million for programs that include school nurses and counselors.

The combination of tougher standards without adequate funding just sets up poor kids to feel the stigma of failure at an early age. And New York City has more poor kids, more dropouts, lower graduation rates, lower reading scores, more violence and larger class sizes than anywhere else.

On top of all this, New York's highest court has ruled that the Republican state administration of George Pataki has been shortchanging the city's schools for years New York City has 37 percent of the state's students, but gets nowhere near what it should, relative to its needs. (The court ruled that the state must adjust its funding formulas.)

Randi Weingarten, president of New York's United Federation of Teachers union, calls Bush's underfunding of NCLB "devastating for New York's students and teachers."

Bush's proposed budget for 2005 does add (at least on paper) about $1 billion for the poorest schools. But at the same time, in a bit of fiscal flim-flam, his budget cuts or eliminates dozens of other education programs that help all cities. Among the programs being cut are those for drug treatment, guidance counselors, childcare, dropout prevention, increased parental involvement in low-income communities and a national writing project.

Bush is still leaving most poor children behind--while his Education Secretary, Rod Paige, called the nation's largest teachers union "a terrorist organization."

Buried in Bush's $2.4 trillion budget for 2005 is another battering blow The budget provides $2 billion less than the Congressional Budget Office estimates is needed to fund Section 8 housing vouchers for the 2 million impoverished, elderly or disabled people already enrolled in this rent-subsidy program nationally. With 80,000 New Yorkers now in the Section 8 program, this means up to 10,000 New York families are now in jeopardy of losing their vouchers and their homes.

There are an additional 130,000 applicants in New York on the waiting list for Section 8 housing vouchers--but this waiting list has been closed to most new applicants since December 1994, because the demand is so overwhelming in a city with a permanent shortage of affordable housing. The voucher program provides a rent subsidy averaging $6,500 a year to families generally earning less than $20,000 a year (the vouchers pay the difference between the market rent of an apartment and 30 percent of a household's income). This cut will annul hope for everyone on the waiting list.

If the Bush budget proposal is approved, this will be the first time in the thirty-one-year history of the HUD-administered voucher program that the number of vouchers would be reduced. Bush tried to cut voucher funding last year, but the money was restored at the last minute by Congress in an omnibus appropriations bill. That cut would have forced 6,100 New Yorkers out of the program, and into almost certain homelessness and destitution.

New York City already has a famine of affordable housing, with rents rising faster than wages and 39,000 homeless people in city shelters, including 16,300 children. Evictions are up. Families are living doubled and tripled up. In Chinatown, I have interviewed immigrants who are renting a bed because they can't afford a room.

It's not possible to know with certainty why Bush and his team have treated New York so unfairly, or what Bush says about us in private with the Rev. Jerry Falwell, Tom DeLay, Karl Rove and Dick Cheney. The Bush team's economic, cultural, political and regional biases surely work against us. I suspect, but can't prove, that they want to punish us because so many New Yorkers are Democrats, union members, immigrants, blacks, Latinos, gays, war critics, civil libertarians, feminists, Jews, artists and bohemians. All I know is that we have been their policy piñata.

We do know what another modern Republican President really felt about New York--because it is preserved on tape. The darkest expression of right-wing nativism can be heard coming out of the mouth of Richard Nixon, on a Watergate tape recorded in 1972 and made public in December of 2003. Sounding like John Rocker on steroids, Nixon exclaims, "God damn New York." Then he whines that New York is filled with "Jews, and Catholics, and blacks and Puerto Ricans." He said there is "a law of the jungle where some things don't survive. Maybe New York shouldn't survive. Maybe it should go through a cycle of destruction."

The study also found drinking rates in the Fire Department of New York consistent with the national average.

The survey of 2,000 firefighters found that 62 percent of those who worked at ground zero in the first month after the World Trade Center collapse still experience at least occasional bouts of depression, said Samuel Bacharach, director of the Smithers Institute at Cornell University's School of Industrial and Labor Relations, which conducted the study.

Depression was half as common among firefighters who had not worked at ground zero, Bacharach, who also is a professor at the school, said Monday.

The study found that 84 percent of those who had worked at ground zero in the first month were still reporting occasional stress, compared with 61 percent of those who were not at ground zero.

"These guys are under strain," Bacharach said. "Depression is up, anxiety figures are up. All the basic indicators are really up."

Forty-nine percent of ground zero firefighters and fire officers reported episodes of anxiety. Anxiety was reported by 32 percent of firefighters who did not participate in first-month recovery efforts.

Bacharach called the 40-page survey the most extensive study of World Trade Center emergency responders. Completed by firefighters last summer and fall, its findings were to be released by the Smithers Institute on Tuesday.

The report, "On the Frontline The Work of First Responders in a Post- 9/11 World," classed 28 percent of respondents as at risk for moderate or serious drinking problems. Bacharach said that number was in line with findings about workplace drinking nationwide.

"You can't just pull out firefighters and say it's their issue," he said. "It's an issue across the American workplace."

At least three firefighters have been arrested this month on suspicion of driving drunk, prompting fire Commissioner Nicholas Scoppetta to announce that firefighters convicted of drunken driving would be required to submit to random alcohol testing.

Scoppetta has expressed increased concern about drinking and drug use in department ranks since a drunken New Year's Eve brawl in a Staten Island firehouse that left one firefighter critically injured.

In the weeks following the brawl, a surprise raid on an East Harlem firehouse found beer and liquor in a locker and cocaine in two firefighters' systems, and a captain and a lieutenant were caught drinking beer in uniform in a karaoke bar they were supposed to be inspecting.

The presidents of the city's firefighters and fire officers' unions declined to comment on the Smithers Institute report, saying they had not read it.

FDNY officials will study the findings and work with the unions to implement any necessary changes in counseling, substance abuse treatment and other programs, spokesman Frank Gribbon said.

"We're going to work with them on the issues that are raised in the study," Gribbon said.

For about a decade, Robert Martin worked against government from the inside.

As an ombudsman from the Environmental Protection Agency, he prodded government to act by working for citizens and communities to try to get cleanup done and programs to work. But his job fell victim to, he says, a political system that no longer shows compassion for the individual.

Martin spoke to the Wisconsin Lakes Convention at the KI Convention Center on Saturday, part of a state tour. He also spoke to an Earth Day gathering at the Multicultural Center.

Martin resigned from the EPA after his job was axed by then-EPA director Christine Todd Whitman, who told him the government had to speak with "one voice," and that voice wasn't one that was representing citizens.

The two broke shortly after the Sept. 11, 2001, terror attacks on New York. Soon after the attacks, Whitman appeared in New York and said there was no problem with toxic fallout and waste at Ground Zero and in nearby buildings. Martin, meanwhile, was studying the situation.

On Nov. 24, 2001, Whitman, who had eliminated a similar job in state government while she was governor of New Jersey, told Martin his job was being eliminated. He fought back, getting Congressional support and support from the communities he worked with, with three communities filing a lawsuit to keep him in place. A restraining order - granted just 10 minutes before the move would have taken effect - held off the closing, during which time Martin held hearings on the toxic effects of 9/11.

"We had two 12-hour hearings and more people wanted to speak," he said.

"After I resigned, I was asked to testify before the House and Senate. I said our government lacks compassion, and I think American citizens deserve compassion. When it comes to environmental harm, that's not often found."

But after four months, as part of a change of venue move, the restraining order was lifted. Within hours, all of Martin's files had been seized and his office was under the EPA Inspector General's control. Martin was told he was not allowed to speak with legislators, the media, or communities. He resigned.

He says the federal government is in "denial mode" regarding environmental problems.

"There's a concern that the EPA is broken," he said. "There's been such a defection of career people (not political appointees) that there's no bedrock in the agency, people who are there solely to accomplish the mission of protecting the environment."

Martin says it isn't appropriate for the government to hold back facts.

"People can handle a lot," he said. "Just tell the truth. And the degree to which that is happening has fallen in the last couple of years."

Martin now does for the private sector what he used to do from inside - file lawsuits to force the government and business to work on toxic waste sites.

His job was similar to that of public intervenor for the Department of Natural Resources - a position abolished a few years ago.

Air quality and contaminant testing around Ground Zero should be expanded, said experts who reviewed the Environmental Protection Agency's (EPA) response to the World Trade Center attacks.

—Florence Coppola

A new testing area should be broader than the originally tested geographical area, and the tests should screen for other contaminants besides asbestos, the 17-member panel decided last week. The panel serves as an advisory board to the EPA.

The EPA has been receiving heavy criticism since a report by the agency's independent inspector general said the EPA did not have enough evidence to declare the air in lower Manhattan safe to breathe one week after the Sept. 11 attacks.

Several local health organizations quickly suspected the air quality was unsafe when relief workers and local residents began to have respiratory ailments. The Mt. Sinai School of Medicine and the New York Committee for Occupational Safety and Health (NYCOSH) worked together to set up clinics to screen people who thought they were affected.

These efforts were supported by the United Church of Christ (UCC). UCC Executive for National Disaster Ministries Florence Coppola said the panel's recommendation is a step in the right direction. "I think this move is late, but it's still a good thing," she said. "And at least they'd be testing for toxins beyond asbestos - this community still needs a lot of help."

Panelists said community members who attended the meeting were pleased with the recommendations, but will still watch the panel closely to see what actions will result.

"The public there was pleased with the notion that the EPA is open to broadening the investigation," said Dave Newman, panel member and industrial hygienist for NYCOSH. "So were many of the activist groups involved in this since 9/11, including NYCOSH. I think many are surprised that this is moving so quickly."

Newman said the next step for the panel is to work directly with the EPA to implement a plan of action, adding that the EPA had already contacted panel members to solicit plan implementation ideas. "(The EPA) wants to know how we want the testing to happen and where the testing should be expanded to," said Newman.

Many advocacy groups want the testing to expand to previously excluded places, like businesses, schools, and firehouses.

The panel's next meeting is May 24, but there's also a conference call May 12, and many additional community groups want to participate in that call, said Newman. "The process is definitely moving along," he said.

Suits allege that 3M marketed its disposable respirator for more than 25 years although it was defective and exposed thousands of workers to asbestos, silica and other deadly dusts. One former senior government scientist who is aiding the plaintiffs says government testing of the safety of 3M's and its rivals' single-use masks was so inadequate in the 1970s and 1980s that the workers may as well have been "guinea pigs."

But 3M, based in Maplewood and listed among Fortune Magazine's "Most Admired Companies," says it's the victim of a legal system run amok. It has been barraged by more than 388,000 suits over its Model 8710 mask and allegations that it marketed an earlier, unapproved nuisance-dust mask to hazardous industries. The company says that the suits are mostly groundless and that many of those filing them didn't even use its masks.

Jim McNerney, 3M's chief executive officer, is seeking help in Congress.

He has personally urged Sens. Mark Dayton, D-Minn., and Norm Coleman, R-Minn., to vote for legislation that would limit much of 3M's potential liability by settling the nation's present and future asbestos injury litigation. Republican leaders plan to bring the bill, which sets up an industry-financed trust fund that would pay victims $124 billion over 27 years, to the Senate floor this week.

GOP leaders have used a $150 million Mississippi jury award last year as a poster child for the legislation. As part of the judgment, the jury ordered 3M to pay $22.5 million to four workers with scarred lungs but few symptoms of disease -- a judgment the company is so confident will be overturned that it has not set aside the money. The company has won the four other suits that have gone to trial.

3M says it resolved 300,000 of the suits -- mostly in the past few years -- for nearly $300 million, an average of less than $1,000. Now the state of West Virginia is suing 3M and two other respirator makers, seeking to recover hundreds of millions of dollars in workers' compensation costs for more than 20,000 coal miners it says wore the masks and got black lung disease or silicosis.

The legal system, says 3M Assistant General Counsel John Allison, is "out of control."

But more than a half-dozen trial lawyers in Texas, Louisiana and Minnesota present a sharply different view of 3M's manufacture and sale of billions of dust masks. Documents emerging in those cases not only shed light on 3M's conduct but also point to government failures in regulating respirators.

In 1994, Nelson Leidel, a senior scientist at the National Institute for Occupational Safety and Health (NIOSH), wrote to the agency's chief that over the previous 22 years, "millions of American users of NIOSH-approved dust masks were irresponsibly put at risk of sickness or death from occupational diseases."

He blamed "major procedural errors" by agency officials, including NIOSH's approval of disposable masks such as 3M's.

In 1979, while thumbing through testing records, Leidel discovered that 3M's masks were recertified in 1977 despite failing a key test of their resistance -- how hard a worker would have to breathe as the filter got increasingly clogged. Experts say that if a worker has to huff and puff, the mask's face seal is more likely to leak. Leidel, at the time, fired off a memo urging NIOSH certification officials to consider revoking the 8710's approval.

"We share your concern over the irregularities..." safety engineer William Cook responded weeks later. "It is obviously impossible to defend that certification decision."

But he said the 3M test was only "the tip of the iceberg."

"We have reason to believe that our certification files are well populated with similar irregularities."

Growing market

In 1962, 3M rolled out a single-strap, nuisance dust mask -- Model 8500 -- that would be displayed on hardware store shelves for the next 40 years. It sold at first for as little as 13 cents.

The company's marketing team saw the potential. 3M boasted in ads that the mask was "90.6 percent efficient (by weight) in filtering dust." While the ads recommended the mask for "non-toxic nuisance dust," an internal 1964 memo proposed running ads in magazines aimed at foundries, shipyards, steel plants, automotive factories, textile mills and spray painters -- job sites where hazardous substances filled the air.

Many of the pending suits accuse 3M of targeting workers exposed to toxic dust to buy the mask.

Larry King, a 3M trial lawyer, said those industries were targeted only for "non-toxic" uses. He said that not "a single person from 1960 to today" has alleged being misled by the ads. He said readers of trade journals were "sophisticated enough to know the difference between the masks and a respirator."

Rather than harming workers, 3M's Allison said in an interview, the company is the victim of a tidal wave of unwarranted suits, many of them brought by unscrupulous trial lawyers who have crossed the country with "18-wheelers" equipped with X-ray equipment for mass screenings of workers' lungs. Each suit names an average of 88 defendants, often including 3M regardless of whether the worker ever wore one of its masks, the company says.

Company memos tracked an exploding market for the 8500s sales of 3.5 million masks in 1962, 16 million in 1966 and 32 million in 1970.

By the mid-1960s, 3M was at work on a more ambitious model -- 8710 -- for use against the growing peril of asbestos and other toxins.

When the 8710 was ready to be tested for government certification, it faced a silica dust test that gauged a mask's filtration ability and resistance.

Critics say the test could give a false impression of a respirator's filtration ability, because the silica penetration was measured by weight. Leidel, in an interview, called it "a silly test" because it used particles of varying sizes. He said a respirator might block 99 percent of the silica particles by weight, but only 60 or 70 percent by count. The tiniest particles, those smaller than 0.5 micrometers, which are invisible to the eye, penetrate farthest into the lungs and are the most hazardous, he said.

King disputes such assertions, asking, "Where is there published work that supports this hypothesis?" He also defended the silica dust test as "a valid way of evaluating the filtration efficiency of respirators."

NIOSH relied on the test until 1995, when it replaced it with a test of smaller, similar-sized sodium chloride particles.

Leidel said NIOSH created a crucial void in its respirating testing in 1972 when it decided to drop a test measuring how well a mask fit on the wearer's face. No fit test has been adopted since. Leidel said NIOSH's "testing requirements were so minimal as to be essentially public health fraud" and using workers as "guinea pigs." 3M's Allison dismissed Leidel as "out of the mainstream" at NIOSH and philosophically opposed to disposable respirators. Leidel was a boat rocker at the agency, but in 1993, two years before his retirement, he won the agency's Meritorious Service Medal for his work on respirator standards.

Sandblaster Tim Davis, 47, a father of four from Harned, Ky., put on a protective "fresh-air hood" while spraying sand on rusted tanks and walls from 1976 to 1991 and wore an 8710 during preparatory and cleanup work in his hazardous trade.

Davis suffers from silicosis, a progressive, oft-fatal disease that gradually stiffens the lungs and is caused by inhaling silica dust. After he underwent surgery for removal of lobes from his lungs, 3M agreed to a confidential settlement of his suit.

Davis, who did much of his work on Minnesota water towers, said he wakes each day thankful his name was "not in an obituary." He said he and his co-workers "thought we were being protected" with the 8710.

Another silicosis victim, Leonard Gray, 71, of Minneapolis, wore both 3M's nuisance dust mask and the 8710 and a later 3M model during more than 35 of his 47 years at the Smith Foundry Co. on E. 28th Street, said one of his Hastings lawyers, Mike Strom.

"I'm just proud to be here after that surgery," Gray said. "I can't do things I used to do."

Gray's work history illustrates the complexity of the respirator litigation, because he worked for 11 years before the 8500 mask became available. Gray's lawyers argue that because the masks did not protect him, he continued to breathe harmful dust, worsening his injury.

'Revolutionary' mask

On May 24, 1972, 3M's 8710 won federal certification for use against asbestos, silica and other fibrosis-producing dusts, and the company blitzed the industrial world with ads touting its "revolutionary," cheap, comfortable mask that had eliminated "99 percent" of particles in government tests.

NIOSH rated the respirator with a "protection factor" of 10 for those dusts -- meaning it could be relied on to filter up to 10 times their allowable exposure limits. But after testing it and other throw-away masks, the University of California's Los Alamos Scientific Laboratory rated it a 5.

"At 3M, we like to talk in terms of our brand promise," said Allison, the 3M counsel. He said workplace studies of its mask -- including at a brake shoe plant and a battery plant -- in the 1980s and 1990s "demonstrate that we've far exceeded that brand promise" to protect workers at 10 times the allowable limit.

But Rodney Vincent, whose law firm has litigated against respirator makers, said NIOSH had approved "a whole class of respirators that ... though relied upon by American workers, would actually contribute to exposures leading to lung disease."

In 1975, 3M ran into a snag that threatened its approval, according to testimony in December by Robert Schutz, a 78-year-old retired NIOSH chief of laboratory testing who oversaw the 8710's approval.

In a sworn deposition, Schutz testified that three years after the 8710 hit the market, NIOSH ran the silica dust test on 25 masks. They were tested in a different facility than when the 8710 was originally certified -- NIOSH's lab in Morgantown, W.Va., rather than the Bureau of Mines' lab in Pittsburgh.

Auditors found that when the masks loaded up with dust, they did not meet the resistance threshold, and that the straps were too short, making them uncomfortably tight. NIOSH regulations called for revocation of the mask's approval, but Schutz testified that he sent the company a letter directing it to fix the problems immediately.

3M officials fixed the strap lengths but concluded their 8710 could not pass the test in the new lab because of its higher humidity settings, according to company memos introduced in court. In an internal company memo, Einar Horne, a 3M official involved in developing respirator products, wrote that he had asked Schutz to ease the agency's resistance threshold, but Schutz refused because a 3M competitor's mask had narrowly passed the test. Some of 3M's competitors, however, were having similar problems with the Morgantown lab's testing, Schutz said.

Schutz said he ultimately chose to effectively look the other way while 3M addressed the problem. Internal 3M documents show its masks overwhelmingly failed its own quality control checks in 1977, 1978 and 1979. Schutz testified that, if 3M had informed him of those test results, he might have revoked its certification.

But King said the reason the masks failed 3M's tests was because it, too, changed the settings in its own testing lab to match NIOSH's and that agency auditors were aware of that. The masks remained safe for workers; it was just the test procedures that had changed, he said. Houston attorney Mike Martin, who questioned Schutz, was skeptical.

"They were able to keep all of this under the radar and sell the masks," Martin said. "That mask was their 'on ramp' to the highway to get into the business. They built their entire respirator division around the 8710. It would have been a huge deal if 3M would have had to take this mask off the market in 1975 like they should have."

In ensuing years, 3M improved its product several times, including adding an electrostatic charge that repelled dust. In 1980, the improved 8710 won expanded approval for use against mists containing lead and cancer-causing arsenic, cadmium and chromium.

But both NIOSH and its sister agency, the U.S. Occupational Safety and Health Administration, were beginning to tighten controls on disposable masks. In 1982, a Western region OSHA industrial hygienist, William Gribble, wrote his supervisors that 3M's masks "are dangerous because employees are using them for protection ... against carcinogens such as asbestos.

"Many times I have examined these respirators during and after employees have worn them, to find nearly as much visible contaminant inside the mask as on the surface outside. Every expert on respiratory protective devices I have talked to, including those in NIOSH and Los Alamos ... has denigrated this respirator."

Meantime, in 1980, top NIOSH officials wrote 3M and other disposable-mask makers, expressing concern that those products might be inadequate to protect workers against asbestos, by then a known cancer-causing agent. While the Norton Co. and some other 3M competitors recommended to their customers that they use a higher-quality respirator, 3M fought government rules prohibiting use of the masks for asbestos, until losing its appeal in 1986.

In 1986, company memos showed 3M's 8710 sales had shot up to 64.8 million masks.

Allison and King said, however, that none of 3M's critics has ever produced workplace studies to contradict its own, which indicate that the 8710 outperformed the government's standards by as much as 70-fold.

Rich Metzler, director of NIOSH's national personal protection technology lab, said the 8710 could not pass NIOSH's 1995 standard, and 3M stopped selling it in the United States in 1998 at the close of a three-year transition period.

In its second public meeting on April 12, the 17-member panel of government and independent experts moved away from its initial plan to retest only those Lower Manhattan apartments that were originally cleaned as part of the E.P.A.

voluntary residential cleanup program. Instead, panelists recommended that the E.P.A. sample workplaces and buildings outside the agency’s prior boundary of Canal, Pike and Allen Sts. Panelists also discussed testing for toxins other than asbestos, the only substance sampled in the majority of apartments the E.P.A. cleaned.

"This is a very important development," said Kimberly Flynn, a spokesperson for 9/11 Environmental Action, a community group. "This is something we didn’t necessarily anticipate."

The panel, formed largely to restore public trust in the E.P.A. response to 9/11, resulted from negotiations among Senator Hillary Clinton, the E.P.A. and the White House Council on Environmental Quality. Many lost faith in the E.P.A. after a report by the agency’s independent inspector general judged the E.P.A. acted without enough evidence when it declared the air Downtown safe to breathe one week after 9/11.

In addition, critics have called the agency’s cleanup program, which began in June of 2002 and ended last year, poorly designed and executed. While the program found few cases of asbestos levels exceeding the E.P.A. benchmark — 6 percent of apartments that received "aggressive" testing, where a leaf blower agitated settled dust, were found to have elevated asbestos levels, compared with only 0.5 percent of apartments that received "modified aggressive" testing—critics have questioned the methodology that generated the results.

At its first public meeting on March 31, the panel discussed testing already cleaned apartments to determine whether recontamination had occurred through building ventilation systems or other means. But two weeks later, panel members shifted towards screening for 9/11-related toxins in general, regardless of whether they resulted from recontamination.

One reason for the change in focus was the challenge of obtaining enough sample data to ensure statistically valid recontamination results, said Dr. Paul Gilman, chairperson of the panel and assistant administrator for research and development at the E.P.A. Another reason, one panelist told Downtown Express after the meeting, was simply because 9/11-related toxins pose concerns regardless of whether they resulted from recontamination or from the original event.

Panelists also found inadequate the E.P.A.’s working assumption that cleaning for asbestos would adequately remove other potentially dangerous toxins such as lead, even if workers did not test for other contaminants in most homes. They debated which contaminants should be included in the retesting program, set to begin this summer.

"When we have proof it’s not in someone’s system, we should move on," said David Prezant, a panel member who is also deputy chief medical officer with the New York Fire Department. For example, Prezant said, high levels of lead have not been found in first responders’ blood, so lead should not be included in the retesting.

Panelists and the public alike cheered the new direction taken at last Monday’s meeting.

"I’m hopeful we can implement science-based testing efforts to broaden the geographical scope of the testing and look for a suite of possible contaminations so that we can finally know exactly what we are or are not dealing with in Lower Manhattan," said Dave Newman, an industrial hygienist with the New York Committee for Occupational Safety and Health, who serves on the panel.

The E.P.A. is not obligated to follow the panel’s recommendations, but given the group’s mandate of bolstering public trust in the agency it is likely the E.P.A. will adopt its suggestions to the extent possible within budgetary constraints. At the panel’s next meeting, scheduled for May 24, members will further discuss their recommendations for the retesting program, in terms of specific contaminants and buildings to be included.

At two public sessions during the April 12 meeting, community members let the panel know they were following its every move. Kelly Colangelo, a resident of 41 River Terrace in Battery Park City, said she had taken a vacation day off work in order to attend the meeting.