People said Wednesday that affordable housing and park improvements to the Hudson and East River waterfronts were the top priorities for the remaining post-9/11 funds.

Debates over the Lower Manhattan Development Corporation’s remaining money – now estimated at $735 million – have raged for two years and given that this was the only hearing for people to comment on the state-city agency’s recently released guidelines for spending the money, the turnout was perhaps lighter than expected.

Only 49 people chose to speak at the hearing although others are submitting written comments until May 1. Only three members of the LM.D.C.’s board of directors – Carl Weisbrod, Bob Harding and Robert Balachandran – showed up to hear the public directly along with Kevin Rampe, L.M.D.C. president.

"I’m so disappointed that there’s not more board members here – that’s really disappointing," said Bettina Damiani of Good Jobs New York, an advocacy group that favors using most of the money for housing and job training program.

After speaking at the hearing at the Custom House, Damiani agreed the turnout was not big. "This is what I expected given the level of public notice," she said. The L.M.D.C. did announce the hearing when it released the guidelines April 13, publicized it on its Web site, and advertised it.

Several members and staffers at Community Board 1 did attend and many of them testified that the remaining money should be used for the waterfront as well as for improvements to Fulton St. and the area south of the World Trade Center site called Greenwich St. South, and for a school and rec center.

Some people who testified said although the W.T.C. memorial is important, it should be paid for with private donations.

Monica Iken, whose husband was killed in the attack and who is raising money for the W.T.C. Memorial Foundation, said L.M.D.C. money will be needed.

"The memorial needs to take precedence," she said in an interview immediately after the hearing. "You can’t solely rely on outside sources."

She and her foundation colleagues are raising $500 million, which will pay for part of the costs of the memorial and cultural buildings. She said the rhetoric that the memorial is the top priority does not match the reality. She thinks no more L.M.D.C. money should be spent until the financing for the memorial is secure.

Weisbrod, who in addition to his L.M.D.C. position is president of the Downtown Alliance, said he is hopeful memorial money will not be needed. In an interview last week, he said he favors using the money for "high-impact projects that dramatically improve the quality of life in Lower Manhattan for workers, residents and businesses and help retain businesses for Downtown."

He thinks Greenwich St. South, the East River waterfront and pedestrian improvements to the Wall St. area best fit his criteria. The Greenwich St. plan includes decking over the entrance to the Brooklyn-Battery Tunnel to create space for a park, a parking garage for commuter buses and make it easier to walk in a car-centered section of Downtown. The L.M.D.C. is considering spending up to $125 million on this plan.

Rampe told the audience that the L.M.D.C. hoped to fund projects that couldn’t get it otherwise. The "L.M.D.C. should infrequently provide dollars of first resort but should instead offer dollars of last resort," he said.

Some speakers said under this reasoning, no money should go to a rail link between the W.T.C., J.F.K. Airport and the Long Island Rail Road, though a representative of Brookfield Properties Corp. and Jennifer Hensley, an assistant vice president at the Downtown Alliance, spoke in favor of the rail link. C.B. 1 also supports the link, but favors using the money that was saved by not building the West St. tunnel to help pay for part of the rail project rather than the L.M.D.C.’s remaining money which is part of the federal Community Development Block Grant program.

Assemblymember Scott Stringer, a candidate for borough president, agreed with many of the speakers who wanted to use some of the money for affordable housing.

Councilmember Alan Gerson, the only other elected official to speak, said the guidelines should be changed so that operational expenses for 9/11-related health and emotional programs could be funded.

"Children are still having nightmares," he said.

Josh@DowntownExpress.com

Among those the mayor's office has decided cannot appear is the most prominent critic of the plans and the highest-ranking fire officer, Chief of Department Peter E. Hayden. Last week, Chief Hayden described the new protocol plans as a "recipe for disaster" and said that under them the city would not be able to mount a safer and more efficient response to a terrorist attack than it had on Sept. 11, 2001.

Councilwoman Yvette D. Clarke, who heads the Fire and Criminal Justice Services Committee, said she thought it was "ridiculous" that Chief Hayden would not testify about the new plan, which is known as the Citywide Incident Command System, or CIMS.

"This guy was a hero on 9/11," she said, "and he is a hero for speaking out, at the potential cost of his job, when he saw something seriously wrong with the new CIMS protocol."

Instead, the administration on Monday told the two oversight committees holding the hearings, now scheduled for May 9, that only Joseph Bruno, the commissioner of the Office of Emergency Management, would be available to testify.

Council members said yesterday that they had appealed to Mayor Michael R. Bloomberg to reconsider and make top fire and police officials, including Fire Commissioner Nicholas Scoppetta and Police Commissioner Raymond W. Kelly available at the hearings, which were first announced on April 18.

"I think this is ridiculous," Ms. Clarke said. "We have an obligation to provide oversight of these protocols, and the public really demands this. We're hoping the administration will reconsider their position. We really feel affronted that the practitioners in the field would not be testifying."

Normally, council members say, senior fire officers appear with little commotion at similar hearings. Ms. Clarke said it would be unusual for Chief Hayden, who has 36 years of experience in the department and is considered the city's foremost expert on fire operations, not to testify on emergency preparedness. He last appeared before the committee, which has oversight of the department, on April 5.

When asked why Chief Hayden or other fire and police officials would not be allowed to testify before the Council, a spokesman for Mr. Bloomberg, Jordan Barowitz, said: "O.E.M. is the lead agency establishing the CIMS protocol. It is appropriate that they testify on behalf of the administration."

Council members, including Ms. Clarke and Peter F. Vallone Jr., who heads the public safety committee, which oversees the Police Department and is holding the hearings jointly with Ms. Clarke's committee, said they believe this was an effort to limit public discussion of the protocol plans. They said the plans were quietly approved by Mr. Bloomberg on April 11 before public hearings could be held.

Ms. Clarke said she had sent a letter to Mr. Bloomberg asking him to allow other officials, besides Mr. Bruno, to testify. She said that if he did not, the Council was considering using its subpoena powers to call top officials, including Chief Hayden.

Those who have seen the entire protocol plan, including Fire Department officials, have expressed concern that it does little to coordinate the efforts of police officers and firefighters at the scenes of major disasters. Two federal investigations and a private consultant hired by the city said such procedures hindered the city's response to the World Trade Center attack, where 343 firefighters and 60 police officers died.

In addition, those inquiries faulted the city for poor communication among its agencies, poor planning, a lack of discipline and the absence of a unified command structure.

In an interview last week, Chief Hayden said that radio frequencies established shortly after 9/11 to allow police and fire personnel to communicate at the scenes of major disasters had never been used at an actual emergency.

"I hope that Commissioner Scoppetta will stand by his chief and protect his position," Ms. Clarke said of the chief's public comments last week. "Because I know he speaks for the whole department."

What will become of the last flexible funding that the federal government gave New York to revitalize lower Manhattan after Sept. 11?

Immediately after the attacks, the federal government allocated $2.7 billion to support the broad revitalization of New York. Most of that money went to corporate retention and resident retention grants, the intent and effect of which were to keep rents high.

But a huge chunk of money is still in limbo. Today, about $800 million is left - enough to make a huge impact by improving parks, building affordable housing, expanding job opportunities, bolstering local cultural institutions and community centers and making sure environmental health issues are addressed.

After 3 1/2 years of sophisticated and passionate input from the public, the Lower Manhattan Development Corp., which controls the funds, recently issued a report on its funding priorities. The LMDC, which is a public authority controlled by the governor and the mayor, came to the conclusion that what the public wants is the same thing major downtown developers want: massive commercial office development, an underground mall, a series of large-scale projects around lower Manhattan, and a rail link for suburban commuters and the JFK airport.

It is an Orwellian distortion of the idea of democratic participation for the LMDC to take the outpouring of public interest in the rebuilding process and claim that it supports a program so deeply at odds with what the city wants.

The LMDC's own neighborhood outreach sessions in the summer of 2003 gave a clear sense of the concern about inequity in the rebuilding process - a lot is being done to help high-income people, with little or no benefit to low- and moderate-income people.

People said they want to see projects that will maintain and enhance the texture, character and diversity of downtown neighborhoods. They want to expand the capacity of community institutions rather than parachuting in fancy new "destinations." They want investments that benefit local residents and workers, not just tourists and commuters. And there has been a real Jane Jacobs, "small is beautiful" aesthetic to all of the input, with support for small businesses, schools, libraries, community centers, job-training facilities and day care - not for Robert Moses-style megaprojects.

Some of the projects under serious consideration for LMDC funding have the potential to realize this vision of investment in communities. Most notable among them is the proposal promoted by the Bloomberg administration to upgrade the East River waterfront. If it's done right - by not building into the water, by ensuring good standards for wages and benefits to workers and by really including the community - this could be a wonderful contribution to downtown Manhattan.

There also has been an array of impressive proposals for projects ranging from a restaurant cooperatively owned by former Windows on the World workers to a venture to protect and enhance Chinatown apparel jobs. Some of the remaining money should be set aside for community proposals like these, which were solicited by the LMDC but still have received no answer.

On transportation, participants at the LMDC workshops talked about connectivity among the lower Manhattan neighborhoods, local bus loops and the Second Avenue Subway - not about a suburban rail link and connection to the airport. The public is right: Drawing from a pot of $800 million to start a project that costs $6 billion creates a giant sucking sound aimed at the already overstretched MTA budget.

And environmental health concerns have not gone away. Residents and workers are concerned about the inaccurate information provided by government officials, the lack of adequate testing and the narrow definition of what counts as an environmental impact due to World Trade Center dust.

http://www.thehawkeye.com/daily/stories/ln13_0426.html

Then she got angry.

Loving brought that anger with her Monday to a meeting of an advisory board considering what the government owes to men and women who built nuclear warheads in a secret weapons program at the Iowa Army Ammunition Plant in Middletown.

Sobbing openly, Loving challenged members of the Advisory Board on Radiation and Worker Health and administrators from its parent agency, the National Institute for Occupational Safety and Health, to "look (her) in the eyes" and say whether they would accept jobs on Line 1, where the nuclear program went on underground for two and a half decades.

"... When I told my last I love you to my dad and he told me, 'Don't give up the fight,' that's what I'm doing," Loving said, her voice trapped between desperation and defiance.

Wendell Pirtle, Loving's father, died April 3, just one week after doctors found cancer invading his pelvis and lung. He worked for the Atomic Energy Commission from at least 1958 until 1974, the year the nuclear weapons effort was scuttled.

Loving's mother Mary Frances also worked on Line 1. She died of cancer 10 years ago.

"You're dealing with human lives," Loving told the board.

Two months can be a lifetime for people with a loved one who used to work at the ammunition plant.

Back in February, the advisory board voted to recommend to the Department of Health and Human Services that all workers with certain types of cancer who spent at least 250 days on Line 1 between 1949 and 1974 get $150,000 and medical coverage from the federal government.

The money was available through the Energy Employees Occupational Illness Compensation Program Act, legislation passed through Congress in 2000 to aid thousands of nuclear weapons workers who toiled in silence building the country's nuclear arsenal only to learn years later their work may have just as silently been killing them.

After years of battling, satisfaction for workers and their families seemed a breath away.

Now it's April. The clock has ticked away. Rather than celebrating, the same people from the plant are facing the same board asking for the same benefits.

If the information for accurate reconstructions is missing or unavailable, workers can petition for inclusion in what is called the Special Exposure Cohort. By definition, anyone in the cohort gets automatic compensation when diagnosed with one of 22 cancers.

When the advisory board voted to add IAAP workers to the cohort, the decision centered on the narrow philosophy that classified information should not be used in dose reconstructions.

In March, NIOSH came out with a new Technical Basis Document for estimating radiation doses at IAAP. This lengthy summation of plant procedures lessened the need for classified information by relying heavily on scientific models.

In a flash, the board's insistence on transparency was irrelevant.

The board members came to Cedar Rapids with the same basic task: Review the IAAP petition and pass a recommendation to Health and Human Services Secretary Mike Leavitt.

The new issue is actually an old one; whether the radiation monitoring data used to create the technical basis document will stand up to peer review.

Most of Monday's meeting, with the exception of an hour taken up with comments by U.S. Sens. Tom Harkin and Charles Grassley and Rep. Jim Leach, was spent on that issue.

NIOSH scientist Tim Taulbee defended the new technical basis document, which radically increases the radiation exposures for workers before 1963 compared to previous estimates, but does not offer nearly as much help for workers after that year.

Laurence Fuortes, a University of Iowa physician studying the health of former workers, challenged Taulbee on several points.

First and foremost, Fuortes and others laboring for the workers believe too little radiation monitoring occurred at the plant for dose reconstructions, period.

From a layman's viewpoint, the numbers seem to bear that argument out. Beginning in 1963, as few as 1 in 20 and never more than 1 in 4 workers on Line 1 wore monitoring badges.

Also, security guards and workers in some other specialties apparently were never monitored.

NIOSH used termination paperwork to identify what jobs the monitored workers held, Fuortes said, without taking into consideration that many people changed positions several times within the plant.

Finally, Fuortes questioned the extensive use of modeling within the technical basis document.

As a teacher, Fuortes said he instills in his students a belief that "ignorance is the first step toward enlightenment."

"I certainly don't recognize" that philosophy in a scientist who would rely so extensively on "surrogate data," Fuortes said.

Some of the doctor's comments echoed concerns raised by S. Cohen & Associates, a firm hired to audit NIOSH.

Specifically, John Mauro, the company's project manager for the audit, addressed the small monitoring sample as a problem after 1963.

For claims prior to that year, Mauro said NIOSH was "very" generous to claimants in estimating radiation levels.

But, Mauro, whose company got just one month to review the SEC process, said the agency went too far in estimating workers would have been in contact with radioactive "pits," the fissile core of nuclear warheads, for just one hour a day.

In addition, one of his colleagues questioned why NIOSH officials had not traveled to Amarillo, Texas, to review 130 boxes of IAAP records stored at the Pantex nuclear weapons facility there. Instead, the agency requested only a portion of the documents.

"It's a plane ticket to Amarillo," said John Fitzgerald, who works for a subcontractor hired by SC&A for the audit, "it's a walk through for a couple of days and you'll have a pretty good idea of what has to be done."

All the jargon and technical mumbojumbo may be necessary for the advisory board to make a decision. But it also sanitizes for many what is an emotional issue.

Sie Iverson worked at the plant twice for a total of 19 years. Now he is a leader in the fight for compensation,

"It's got to end," Iverson told the board as the long meeting wound down. "I've lost too many friends, too many people I went to church with, too many people I sat down at the nearest bar to drink with."

Q: The Comments from the EPA regarding the Draft Phase I Deconstruction Plan included a comment on fine particles and how the deconstruction of 130 Liberty may contribute to "already unhealthful levels of fine particles in Lower Manhattan." Is there an explanation for this statement?

A: The air quality in Lower Manhattan is no different from the rest of New York City or the surrounding metropolitan region. The EPA has clarified that the comment regarding "already unhealthful levels of fine particles in Lower Manhattan" is in relation to a much broader air quality issue than anything directly related to 130 Liberty, or even September 11th. The EPA has developed health-based standards for fine particles in the air and has identified areas throughout the country that attain the standard and identified areas that exceed the standard. The areas that exceed the standard fine particle concentration or contribute to problems in other areas were labeled "non attainment" areas. The five boroughs of New York City and adjacent areas are a non-attainment area as a result of emissions from motor vehicles, construction equipment, industry, power plants and dense population. As such, EPA's comment relates to its concern that all reasonable measures should be taken to avoid exacerbating the existing air quality problem whether it be in lower Manhattan or any other part of the metropolitan area for that matter.

http://query.nytimes.com/gst/abstract.html?res=F50E14FE3E550C778EDDAD0894DD404482&incamp=archive:search

The tower, a stunning creation forged by the opposing architects Daniel Libeskind and David Childs, is apparently being sent back to the drawing boards, after word came from security experts at the New York Police Department that they have problems with the building as planned. Since the details about the Freedom Tower were first unveiled to the public in December 2003, that delay by the department is unreasonable. Still, it would obviously be irresponsible not to take the objections of the police into consideration, however late they are in arriving.

While reasonable safety concerns may require changes in the building, the "beacon" promised by Mr. Libeskind cannot under any circumstances be replaced with a dreary, fear-inspired fortress. The tower could become overly bulky if extra security demands are simply grafted onto the present plan. It already calls for a massive building, with too much extra office space - added to suit the developer - and a very tall spire for those who want a perpetual sign of defiance to terrorists. Nothing would better express capitulation to terrorism than a large skyscraper that looks like a vertical bunker.

New Yorkers need an inspiring building at the World Trade Center site, one that helps mend the still-aching hole in the skyline. They might not need a tower that reaches to Mr. Libeskind's symbolic 1,776 feet, but the structure must still work as the focal point of the site. It cannot become a mostly vacant office tower that caters too much to the purported needs of the present site developer, Larry Silverstein.

Mr. Silverstein, backed by billions of dollars in insurance money he received from his lease on the twin towers, has already constructed one office building adjacent to the site. So far, he has not announced a major tenant. If he continues to demand that the site provide anything like the 10 million square feet of office space lost with the twin towers, he will be serving his own needs more than the community's or even, at this point, the market's. The World Trade Center site must be a treasured public space and a critical piece of a renewed community, not just another huge commercial development looming over a few public amenities.

Governor Pataki, whose legacy will be written with the rebuilding at ground zero one way or another, is the crucial figure in this new chapter in the post-9/11 story. He needs to encourage Goldman Sachs & Company energetically to keep its building downtown, and push Washington for help in bringing down the old Deutsche Bank building, now shrouded mournfully in black netting. He must make certain that the uplifting Santiago Calatrava PATH station is built as planned. And he should re-engage Mayor Michael Bloomberg, who seems obsessed with other development plans for Manhattan's West Side at a time when Lower Manhattan is urgently in need of his attention.

If the Freedom Tower design is to be redone, Mr. Pataki must make certain the public is allowed to participate. The current design was chosen after a closely watched and hugely publicized competition in which the people of New York - and the nation and the world - made their opinions known every step of the way. If, after all that effort, the plan is suddenly replaced by something far less magnificent than what was promised, the public will have a right to feel betrayed.

   Back to Top

http://www.nytimes.com/2005/04/23/nyregion/23respond.html?pagewanted=print&position =

"We've had these rivalries that have been with us for a long time, and the Office of Emergency Management gives me the advice and then you've got to make a decision," the mayor said during his weekly radio program on WABC-AM yesterday morning. "I don't think that the Fire Department lost anything here. The Police Department is doing what they're supposed to, and the Fire Department is doing what they're supposed to do."

Under the new policy, police officials will direct the work of other city agencies at the scene of chemical and biological attacks and nearly all disasters that involve hazardous materials.

Fire Department officials had vigorously lobbied for such authority, arguing that they, not the Police Department, had the expertise and specialized personnel to manage such situations effectively.

In his comments, Mayor Bloomberg took care to praise the Fire Department, citing its "unparalleled" expertise with hazardous materials. But he suggested that the threat of terrorism had altered the assumptions behind emergency response efforts, necessitating an increased role for the police.

"In this day and age, the possibility of a terrorist attack is on our minds in a way it wasn't before 9/11," the mayor said. "And if it is a terrorist attack, you've got to know so that you can make sure it's not going to happen elsewhere."

The mayor said that the new policy would allow the city to react better to potential terror attacks. Under the plan, Fire Department specialists would continue to do their work at the scene, but police commanders would have more decision-making authority.

"I think the police's expertise is in doing an investigation and preserving evidence, and the Fire Department's expertise is in lifesaving and cleanup," the mayor said. Putting police commanders in charge of the response to potential terrorist attacks, he said, took "nothing away from the Fire Department."

The change is one part of a emergency response plan known formally as the Citywide Incident Management System and is intended to fix some of the coordination problems that occurred on Sept. 11, when police and fire officials lacked even a shared radio frequency on which to communicate.

The new emergency response policy, which has been under discussion for several years, has worsened Mayor Bloomberg's difficult relationship with fire officials, and added fuel to the longstanding rivalry between the Police and Fire Departments.

But the mayor emphasized that the guidelines affected relatively little of the day-to-day division of labor of the two departments, and held out hope that the dispute would not deter either from working together.

Copyright 2005 The New York Times Company

http://www.occupationalhazards.com/articles/13294

The cuts, contained in the administration's 2006 proposed NIOSH budget, reduce the agency's maximum number of FTEs from 1435 to 1246. Despite the proposed work force reduction, NIOSH's 2006 proposed budget of $285.9 million is essentially unchanged from this year's $286 million.

The relationship between NIOSH and CDC has become a subject of controversy ever since the administration proposed a reorganization plan that critics charged would have undermined NIOSH's independent status. Last year, Congress attached a rider to an appropriation bill funding CDC that prevented the administration's reorganization from affecting NIOSH. As a result, unlike other agencies within CDC, NIOSH Director John Howard continues to report directly to the director of CDC. It remains to be seen, however, whether Congress will keep the rider on the 2006 appropriation bill.

Two of the most prominent workplace health and safety professional organizations, the American Industrial Hygiene Association (AIHA) and the American Society of Safety Engineers (ASSE), have suggested that NIOSH should not be part of CDC.

"CDC does not have the capability to effectively oversee both the increased national focus on public health requirements and the numerous occupational health challenges this country is facing," according to Donna Doganiero, president of the American Industrial Hygiene Association. Doganiero's comments were contained in a March 31 letter to Rep. Ralph Regula, R-Ohio. Regula chairs the House appropriations subcommittee for the Department of Health and Human Services, which contains CDC.

In a March 8 letter to CDC Director Julie Gerberding, ASSE President Gene Barfield criticized CDC's 2004 report on the state of CDC for failing to devote appropriate attention to workplace safety and health issues. Barfield enclosed with his letter ASSE's position statement calling on Congress to consider relocating NIOSH as an independent agency within the Department of Labor.

Currently NIOSH has only 1,300 FTEs, far below its 1,435 ceiling, according to a NIOSH spokesperson. Even so, the new ceiling would mean eliminating more than 50 NIOSH positions. In addition, the lower CDC ceiling would prevent NIOSH from having the flexibility to hire more staff should increased funding become available. In the past, Congress has regularly appropriated more money to NIOSH than the Bush administration has proposed.

It is not clear which positions would be eliminated should CDC's proposal be accepted. A spokesperson indicated that since 2002, NIOSH has already lost 50 "business services support" positions to CDC.

   Back to Top

The Fire Department, in a 21-page February memo to the city's Office of Emergency Management signed by Fire Commissioner Nicholas Scoppetta, said that allowing the Police Department to control agencies at the scene of such an attack "jeopardizes public safety."

Fire officials, both in the memo and in more recent meetings with Mayor Michael R. Bloomberg, argued that their department had the expertise, the training and the highly specialized units to direct the response at such a disaster.

In an interview this week, Chief of Department Peter Hayden, the highest-ranking uniformed officer in the Fire Department, said that while the department would follow the new protocol, the city's decision to grant the police primacy at such emergency scenes was one element of a still dangerously flawed emergency response plan.

"If the question was posed today - would the response at a terrorist incident be different than it was on 9/11? - the answer would have to be no," Chief Hayden said. "Now if that isn't a recipe for disaster, I don't know what is."

Fire officials say they should be among the commanders leading such responses because they have been handling hazardous-materials incidents for decades. They also say they have more sophisticated equipment to contain chemical or biological materials and more experience identifying such substances, and are uniquely prepared to direct lifesaving efforts.

Mr. Bloomberg, according to city officials, formally signed the executive order governing the control of disaster responses on April 11. The response plan gives the Police Department the authority to direct the work of the city's emergency agencies at virtually every major disaster scene involving hazardous materials, at least until the threat of terrorism has been eliminated. City Council hearings on the plan are set for May 2.

Despite his earlier objections to the newly adopted emergency response plan, known formally as the Citywide Incident Management System, Mr. Scoppetta said yesterday that it was now his job to try to make it work.

Edward Skyler, a spokesman for the mayor, said Mr. Bloomberg consulted with both departments before signing the protocol. "The mayor got a great deal of input from different perspectives," Mr. Skyler said, "but ultimately it's his job to make a decision, and that's what he did."

The Police Department would not comment yesterday on the emergency response plan.

The city's effort to work out a binding emergency response plan has been hampered by the longstanding rivalries and mistrust that have plagued relations between the departments for decades. A variety of city and federal inquiries into the city's emergency response at the World Trade Center on Sept. 11, while acknowledging acts of extraordinary bravery, found fault with the planning and performance of the departments, citing poor communication, a lack of discipline and coordination, and the absence of a unified command structure. One of the federal investigations suggested that those problems contributed to the deaths of numerous rescuers.

But Chief Hayden said this week that more than three years after the trade center disaster, the Police and Fire Departments had so far failed to take advantage of even one of the most basic plans for how to better coordinate efforts at the scene of a terrorist attack: using a shared radio frequency that would permit commanders of the two departments to communicate directly.

The Fire Department's concern, even anger, over the new response plan is no surprise. Over the last two years, as meetings were held and draft versions of the plan were drawn up, the department has expressed worry about losing its command role at some emergencies.

The department's worries deepened as the plan moved toward a final form. Mr. Scoppetta and Chief Hayden met in person with Mr. Bloomberg in recent months to express their concerns.

Indeed, in its memo outlining its criticism of the plan, the Fire Department said the idea of having the police in charge of hazardous material incidents was in direct opposition to the protocols for a shared command structure formulated by the United States Department of Homeland Security.

Under the city's new plan, fire personnel would be involved in tackling any biological or chemical attack, performing many of the duties they have been trained to do. But police officials would be the commanders at the scene, ultimately responsible for making critical operational decisions.

In almost all other American cities, though, incidents involving the release of hazardous material are handled by fire departments, and it is their officials who command firefighters in the field, fire officials say. The police typically respond to the scene to help secure the perimeter and to assist with investigation. These roles hold fast regardless of whether the release was accidental or intentional.

City fire officials said their command roles at other incidents - fires and building collapses - would be unchanged even if such an incident was found to have been intentional. They said that removing hazardous material incidents from their command was inconsistent with the city and national models.

In his February memo, Mr. Scoppetta suggested that the Police Department had never believed in developing a plan for the two agencies to truly share command at major disasters. He pointed to Police Commissioner Raymond W. Kelly's testimony to the City Council in 2002 when Mr. Kelly said he did not believe that the management model used by the federal government and other cities was appropriate for New York City.

In the same document, Mr. Scoppetta said that the police not only are less equipped and skilled at handling hazardous materials incidents, but they often failed to appear at them altogether.In a letter from a police official to the Office of Emergency Management that became public last year, the police stated that they should have control of any incident that could possibly be a crime scene. The letter stated that the lead agency should be one that could "manage the entire incident" rather than the "agency with the expertise to resolve one or more specialized aspects of the incident."

William K. Rashbaum contributed reporting for this article.

Democratic Sen. Tom Carper of Delaware has said he believes Stephen Johnson, Bush's choice to lead the EPA, is well qualified. He said he is holding up the nomination ``with a heavy heart and with much regret'' because the EPA and the White House had ignored his request for an analysis of the economic, health and environmental impact of his alternative to Bush's clean-air plan.

Johnson, an EPA employee for about 25 years, has been EPA's acting administrator since January. He is the first person with a science background to be tapped to lead the agency.

He was at the White House on Thursday as Bush presented Environmental Youth Awards. The president opened the event by urging the Senate to move on the nomination.

"I put this good man's nomination in front of the United States Senate for a reason - because he's plenty capable of doing the job,'' Bush said. "And now is the time for the United States Senate to confirm him.''

Under Senate rules, a single senator can stop votes to confirm nominees.

Since April 2003, Carper has sent at least four letters to EPA seeking data to help him and his colleagues compare a Bush proposal on air pollution with two competing plans that also address carbon dioxide, the main "greenhouse'' gas blamed for global warming.

His hold was a second shot against Johnson, an otherwise noncontroversial nominee. Sens. Barbara Boxer, D-Calif., and Bill Nelson, D-Fla., lifted their holds on the nomination only after Johnson agreed to cancel a pesticide study in Florida involving children.

Guardian Unlimited © Guardian Newspapers Limited 2005

http://www.nj.com/news/times/index.ssf?/base/news-3/1113988352113090.xml

The U.S. Environmental Protection Agency quickly deployed 15 air-monitoring stations yesterday within a 2-mile radius of the plant on Industrial Drive, which processed asbestos-tainted vermiculite between about 1950 and the early 1990s and is currently occupied by a paper-shredding business.

Preliminary results from the tests, taken from several sites in Hamilton and a couple of locations in neighboring Lawrence, are expected back today, said EPA spokeswoman Mary Mears.

"This is a quick, high-volume type of sample," she said. "We need to see if there is asbestos in the air and what appropriate actions we might take and whether we need to do more testing."

Officials at the site declined to speculate about results of the tests.

State environmental officials said they were not concerned about other hazardous air emissions released in the fire because the current occupant, Accurate Document Destruction Inc., ran what they described as a chemical-free paper-shredding business.

"Our records indicate that there was essentially paper there," said Bradley Campbell, commissioner of the state Department of Environmental Protection. The W.R. Grace plant, which processed vermiculite mined in Libby, Mont., that contained a form of asbestos called tremolite, has been the subject of several recent investigations by state and federal environmental and health regulators.

The EPA took air samples inside the plant earlier this month to see whether there were significant levels of residual asbestos from the many decades in which the former occupants - the Zonolite Co. and its successor at the site, W.R. Grace - made fireproofing and insulation products from the Libby vermiculite.

Results of those tests, taken earlier this month, are not yet available, said Mears, who described the earlier samples as "undergoing a more sophisticated type of analysis" to separate possible asbestos fibers from background paper fibers released by shredding.

But state and federal officials studying contamination at the plant during its years of operation, as well as residual pollution left at the site by W.R. Grace, insist their investigations are not hampered by the loss of the plant, which was destroyed in the fire yesterday.

Mears noted that the EPA had already tested dust at the former factory and taken air samples to determine if current workers have been exposed to dangerous levels of asbestos. Those tests followed an earlier round of testing that was later determined to be improperly conducted and, therefore, inconclusive.

Some former workers, however, expressed skepticism yesterday that the building was sufficiently tested. W.R. Grace employees describe the former factory as so dusty at times it was difficult to see across the room.

Mears said ongoing remediation at the site also would be unaffected by the fire, though she noted it could be expanded if significant levels of asbestos were released in the blaze.

Last year, the EPA ordered 9,000 tons of contaminated soil removed from the property and trucked to an out-of-state landfill. The agency plans to remove more dirt from the site early this summer.

"Whether we decide to do anything additional, we don't know yet," Mears added. "That will depend on what asbestos is present (in the recent sampling) and at what levels."

State health officials, who have been working with federal health agencies to evaluate conditions at the plant during its several decades in operation, say they also are unhampered by the fire.

Their investigations have largely included interviews with former plant workers and managers and careful scrutiny of decades worth of documents related to operations at the site. In a first report, the agency concluded that workers were exposed to high levels of asbestos there.

"The fire earlier today does not have an impact on our W.R. Grace/Zonolite health assessment. Our primary focus at this time is on the historical exposures of the former Zonolite plant employees and the people who lived in their households," said Marilyn Riley, a spokeswoman for the state Department of Health and Senior Services.

She added, "We already know that W.R. Grace workers were exposed to hazardous levels of asbestos and their family members may have been exposed through asbestos carried home on the workers' clothes, hair, shoes and automobiles."

The agency is still gathering information about the site, including the possibility that people in the surrounding neighborhood may have been exposed to high levels of asbestos from plant emissions.

Health officials worked with EPA investigators at the site of the fire yesterday to decide how to deploy air monitors after they determined that a south-to-north wind was blowing during the blaze.

Monitors were placed at the Slackwood firehouse and in the Colonial Lakelands neighborhood in Lawrence and in Amherst Park and at the municipal building in Hamilton, among other sites.

Contact Tracey Regan at tregan@njtimes.com

   Back to Top

[For an archive of articles and documents about buildings facing heavy official scrutiny burning down under suspicious circumstances oh, forget it.]

[No! – go for it! http://www.nycosh.org/workplace_hazards/asbestos.html#news]

HAMILTON - A suspicious, five-alarm blaze engulfed the former W.R. Grace & Co. factory early yesterday, destroying a building being scrutinized as a possible health hazard after more than 40 years of asbestos contamination.

More than a dozen investigators from federal, state and local law enforcement descended upon the fire scene, but officials would not say if they suspected the blaze, which caused no injuries, had been deliberately set.

Last night, officials were calling the cause "undetermined" until they could get into the still-smoldering building to investigate.

But Mayor Glen Gilmore, citing the plant's toxic past and the asbestos testing and cleanup that has gone on there over the past five years, went further.

"Given the building's history, I would call this fire suspicious," Gilmore said. "It is being treated as a crime scene."

Law enforcement officials confirmed the site was considered a crime scene, but said that was standard practice with a fire of this size.

The fast-moving blaze left only portions of the walls standing at the 40,000-square-foot factory. The machinery inside, including a $350,000 state-of-the-art shredding machine, had been reduced to rubble.

Thousands of large bricks were littered throughout the parking lot from the building's collapse.

Lawmakers said they intend to pursue investigations into pollution at the factory despite the fire's destruction. A joint Assembly hearing has been set for next week and calls continue for a probe by the federal General Accounting Office.

The fire was discovered by an employee of Accurate Document Destruction Inc. (ADDI), the document-shredding company that now owns the building, shortly after 5 a.m., Hamilton fire officials said.

Truck driver Mearal Manuel said when he arrived at the building and opened the warehouse door, he saw smoke. He said he then went to the back of the building and saw more smoke coming from the building and immediately called 911. Just after dialing, he said, he heard the fire alarm inside begin to sound.

"I called my boss to tell him we had a fire," Manuel said. "He asked me how bad, but by that time the building was almost gone. It happened fast."

-- -- --

Hamilton District 4 Chief Dave Smolka said flames were shooting through the roof of the building when the first firefighters arrived.

Firefighters from Hamilton, Ewing, Lawrence and other surrounding departments responded to the blaze and reportedly had it under control by 7:30 a.m.

By late yesterday afternoon, the fire was still smoldering and officials said it remained too hot to allow investigators to enter.

"It may be a few hours or maybe even a day before we can get in to investigate," said Charles Humphrey, agent in charge of the Bureau of Alcohol, Tobacco, Firearms and Explosives' Trenton office.

However, Humphrey said the fire appears to have burned hotter in the center portion of the building, a possible point of origin, and his team will likely start searching there.

The building was not equipped with sprinklers but did have an elaborate fire alarm system, said plant general manager Stephen Mandarano. But Mandarano said despite alarms throughout the plant, employees reported the fire before the alarm sounded.

ADDI holds shredding contracts with several federal, state and local government agencies as well as hundreds of private businesses. The building was packed with bails of shredded cardboard and paper from the tons of material shredded each day.

The company has occupied the building since 2000.

But from 1948 to 1991, the building was used to process vermiculite ore shipped from a mine in Libby, Mont., for use in fireproofing, insulation and garden products.

When the plant closed in 1994, a consultant hired by W.R. Grace to assess the site reported only insignificant amounts of asbestos on the grounds.

Despite several reports of emissions problems at the plant dating back 40 years, the state Department of Environmental Protection accepted the consultant's report and required no further testing on the grounds.

-- -- --

The matter remained closed until 1999 when news reports detailed widespread health problems among Libby residents. As a result, the U.S. Environmental Protection Agency (EPA) began investigating some 200 plants around the country that processed the contaminated ore.

In 2000, EPA testing of the Hamilton plant revealed asbestos in concentrations as high as 40 percent, and the agency ordered the removal of 9,000 tons of soil. That cleanup was completed last March.

Another 6,000 tons of soil are scheduled to be removed from the grounds this summer.

Last week, dust samples taken from inside the plant revealed small amounts of asbestos present, and the EPA is still waiting for the results of air samples taken at the same time.

Yesterday, representatives from the EPA and DEP were at the scene conducting air sampling around the site as well as in neighborhoods in Hamilton and Lawrence. EPA officials said they were doing the testing as a precaution because of the presence of asbestos on the grounds and in small amounts inside the plant.

"This is a precaution to ease people's minds," said spokeswoman Pat Seppi. As far as the EPA knows, the building contained only paper and posed no other threat to the community, Seppi said.

Mandarano said officials were urging him to demolish the building for safety reasons. By late yesterday afternoon, Mandarano said he had found a new home for the operation in an empty factory in Ewing. His equipment suppliers had agreed to provide two shredders so he could continue to provide his service. The plant's 55 employees would be out of work for as little time as possible, he said.

Mandarano said he had no idea how the fire started but said he did not think it was arson.

"It is not of a suspicious nature at this point," he said. "There has not been a crime committed that we know of."

Frank Enourato, a construction contractor who did work on the plant in the 1970s, said evidence might have been destroyed.

"I feel disgusted that it burned down," he said. "There was a lot more in that building that should have been checked."

-- -- --

Federal and state elected officials said the building's destruction would not change investigations of the handling of the asbestos contamination that are set to begin next month.

"This situation in no way diminishes the need for a (Government Accountability Office) investigation of EPA activities at the site but instead underscores the urgency for a timely, thorough and informative probe," said Rep. Chris Smith, R-Hamilton,

Smith is asking the GAO to investigate the EPA's response to the contamination at the former vermiculite plants, including the Hamilton site.

Assemblywoman Linda Greenstein, D-Plainsboro, who has scheduled a joint committee hearing on the contamination for May 5, said yesterday in a letter to DEP Commissioner Bradley Campbell that it was important to assure the safety of the surrounding residents.

"As a result of this fire, the people of Hamilton Township may never receive an answer to the question of how much tremolite asbestos remained at the site," the letter said. "However, the careful monitoring of the surrounding areas can assure residents that this incident will not put their health at further risk."

NOTE: Contact Darryl Isherwood at disherwood@njtimes.com or (609) 989-5708.

2005 The Times of Trenton

   Back to Top

http://www.nytimes.com/2005/04/20/nyregion/20fleet.htm

The City Council is expected to vote today to approve a wide-ranging package of environmental bills intended to reduce the tailpipe emissions that contribute to cancer, heart disease and respiratory problems, including asthma.

The additional costs of using clean fuel and modifying existing engines with filters is expected to be offset by the savings in fuel consumption and, over the long term, lower health care costs.

The bills would force the city to buy only cars or vans that are the least polluting models available whenever it replaces vehicles currently in use, including the gas-guzzling Chevrolet Suburban provided for Council Speaker Gifford Miller, a sponsor of the bills. No more than 5 percent of the new cars could be exempted.

The bills would also require the city's fleet to be efficient enough to reduce its overall fuel costs by 20 percent in a decade.

In another sweeping change, the 4,000 yellow school buses that transport public school children will have to switch to ultraclean fuels and be retrofitted with catalysts and filters.

The antipollution devices cost several thousand dollars per vehicle, and much more for older engines. Environmentalists hope this will encourage owners to replace aging buses with new, clean, more efficient models.

The 8,800 heavy-duty diesel buses and trucks owned by the city, including trash haulers and street sweepers used by the Department of Sanitation, must also switch to cleaner diesel fuel and be equipped with high-efficiency filters. And private tour buses, including the older double-decker buses frequently seen in Manhattan, would have to clean up their emissions substantially or be taken off the streets.

"These bills will have dramatic and far-reaching effects," said Councilman James F. Gennaro, a Democrat from Queens and chairman of the Environmental Protection Committee.

Speaker Miller of Manhattan, a Democratic candidate for mayor, said the new laws would "help all New Yorkers, especially our children, breathe easier."

Mr. Gennaro said that the legislation had already been reviewed by the Bloomberg administration and that he expected it to pass easily. But during negotiations with City Hall, major objections were raised to a provision that would have required the Department of Sanitation to buy new garbage trucks powered by compressed natural gas, one of the cleanest fuels. An experiment in the 1990's with natural gas-powered trucks was disappointing, and sanitation officials did not want to use them again except on a limited basis.

In the end, the bills include a pilot program involving a handful of street sweepers powered by compressed natural gas.

Executives from companies willing to pay for the construction of stations that dispense natural gas to help the city make the switch said that technology had improved greatly since the city last used the vehicles. Dozens of cities in the United States use compressed natural gas extensively.

"The city really missed an opportunity to move forward on the cleanest fuel to reduce the consumption of foreign oil and cut down on the rate of asthma," said Garnet D. Glover, general manager of Clean Energy, a natural gas supplier that had promised to spend up to $4 million to build refueling stations in New York.

Instead of selecting a new fuel, the city is focusing on cleaning up the diesel engines that have already been identified as major sources of pollution. In 2003, a similar law was passed to clean up diesel-powered vehicles on construction sites.

When it comes to regulating diesel engines, the city is a few steps ahead of the federal government, which will require ultralow sulfur fuel in all diesel engines as of September 2006. Environmentalists say that switching to the new fuel reduces harmful emissions only marginally, but it is important because it makes possible the use of sensitive filters that produce substantial reductions.

The Metropolitan Transportation Authority's buses and some school buses already use the ultraclean fuel, but one company, Sprague Energy, is the city's sole supplier. Some city officials are worried that there might not be enough ultraclean diesel fuel available to meet demand between this summer, when the new city laws go into effect, and September 2006, when the federal standards kick in.

Mr. Miller said that switching to the new fuel before the federal schedule would allow New York to create a new market that would attract producers and suppliers.

   Back to Top

http://www.nytimes.com/2005/04/19/nyregion/metrocampaigns/19hillary.html ?

WASHINGTON, April 18 - Even as Republicans struggle to find a candidate to challenge Senator Hillary Rodham Clinton of New York next year, she has embarked on a furious fund-raising drive that appears to have left her with a larger reserve of cash than any other senator seeking re-election.

Her campaign reported on Monday that she had amassed nearly $4 million in contributions in the first three months of this year, meaning that she will close the first quarter with $8.7 million in the bank.

Mrs. Clinton's advisers are reluctant to say what the senator's fund-raising goal is for the 2006 re-election campaign. But she raised and spent roughly $30 million in 2000, when she won Daniel Patrick Moynihan's old seat in the most expensive Senate race in New York history, according to campaign finance disclosure records.

This time around, Mrs. Clinton, whose popularity rating in New York is soaring, may end up facing only token opposition. But Republicans are nevertheless vowing to spend millions to attack her, no matter who her opponent is, because she is considered a leading presidential contender in 2008.

The amount raised by the Clinton campaign during the first quarter of the year strongly suggests that her base of support is swiftly mobilizing, even though Republicans are having trouble recruiting a big-name candidate to run against her.

Two potentially strong opponents - Rudolph W. Giuliani and Gov. George E. Pataki, both formidable fund-raisers, have shown little interest in running against her in 2006. At this point, the most likely Republican candidate is Edward F. Cox, a lawyer who is the son-in-law of President Nixon.

Mrs. Clinton's total - collected during a fund-raising sprint that included as many as two events a week - solidifies her position as one of the most formidable fund-raisers in politics, with an almost unrivaled ability to rake in huge sums of money in a relatively short period.

But remarkably enough, the nearly $9 million that Mrs. Clinton has in the bank does not capture the full extent of her fund-raising ability, say her campaign advisers and other Democrats.

That is because Mrs. Clinton spent her first four years in office playing host to fund-raising events not so much for herself as for House and Senate candidates around the country, as well as the three major Washington-based Democratic campaign committees.

Her campaign advisers estimate that she brought in at least $45 million for other Democrats, including Senator John Kerry of Massachusetts, the Democratic candidate for president. Indeed, Whitehaven, the Clinton home in Washington near Embassy Row, has been a hub of Democratic activity, with frequent fund-raising dinners and receptions.

Mrs. Clinton's efforts on behalf of Democrats have enabled her to forge new alliances around the country, alliances that will almost certainly come in handy should she decide to run for national office, Democratic officials say.

While the public is paying almost no attention to the 2006 campaign, Republicans who are thinking about running against her are closely scrutinizing her fund-raising totals.

More than that, Republican leaders in New York and around the country are making impassioned appeals for money to help her eventual challenger, adding to the pressure Mrs. Clinton's advisers say they feel to raise money.

In one instance, a prominent conservative Republican strategist, Arthur J. Finkelstein, is setting up a political action committee, called Stop Her Now, to raise $10 million to run a hard-hitting advertising campaign against Mrs. Clinton in 2006.

Republican strategists say that raising large sums of money against Mrs. Clinton will be relatively easy no matter who her opponent is because of the strong anti-Clinton sentiment among conservatives.

Indeed, in her previous campaign, Mrs. Clinton faced two Republican challengers who managed to raise staggering sums from Republicans across the country: Rudolph W. Giuliani, who spent about $20.7 million before dropping out, and Rick A. Lazio, a former congressman from Long Island, who spent $40.6 million, according to campaign finance records.

In that context, Mrs. Clinton's advisers say she cannot take anything for granted, particularly since her Republican opponents have successfully employed anti-Clinton appeals both to raise money and to expand their own donor bases.

"We have to take this seriously," said Patti Solis Doyle, the executive director of Friends of Hillary, Mrs. Clinton's re-election campaign committee. "It almost doesn't matter who runs against her. He or she will be very well funded. Let's not forget that Rick Lazio raised more than $37 million in six months."

While the latest financial reports were not available for every single senator who is up for re-election in 2006, Mrs. Clinton's tally was so impressive that it seemed unlikely to be surpassed, according to officials in both parties.

In fact, a spot check showed that Mrs. Clinton had larger cash reserves than even Republican and Democratic senators who have been among the most aggressive fund-raisers in preparation for the 2006 campaign season.

These senators include Kay Bailey Hutchison of Texas ($7.2 million), Edward M. Kennedy of Massachusetts ($6.2 million), George Allen of Virginia ($3 million), Bill Nelson of Florida ($3 million), Rick Santorum of Pennsylvania ($2.8 million) and Debbie Stabenow of Michigan ($2.8 million), according to their aides and campaign disclosure statements.

Copyright 2005 The New York Times Company

   Back to Top

Corporate defendants under the gun in countless civil suits push for a legislative escape hatch to avoid accountability; victims who have long sought justice through the courts now question whether Congress can offer a better solution.

Apr 19 - As lawsuits stemming from asbestos-related sickness place a swelling burden on the courts, lawmakers are weighing a controversial proposal to scrap the existing litigation process in favor of a supposedly fairer system for compensating victims of the deadly industrial contaminant.

The Senate Judiciary Committee is currently weighing legislation that would create a federally administered trust fund for individuals suffering from asbestos exposure. The Fairness in Asbestos Injury Resolution Act of 2005 would establish a system for allocating financial compensation to victims while essentially outlawing civil litigation against corporations for asbestos damages. Proponents of the bill see it as a way to free up an overburdened civil court system, but many critics believe the proposed trust fund would offer no guarantee that victims would be adequately compensated for their suffering.

Similar initiatives for asbestos compensation funds in previous years have failed to muster enough public or congressional support to pass, leaving cases to be handled by the courts.

According to a draft bill released to the public, the legislation would provide a $140 billion national fund for asbestos compensation, financed by asbestos-related corporations and their insurers. Like workers' compensation, the fund is designed to dramatically reduce industry liability and to pay for medical and other expenses associated with asbestos-induced illness. Rather than taking their cases to court, victims would file a claim with the Department of Labor, which would then judge whether the person's case warrants compensation and allocate funds according to the severity of the harm caused by exposure.

Asbestos, a mineral used in the production of industrial materials, has been shown to cause various lung diseases, including lung cancer and a less common form of cancer known as mesothelioma. These illnesses have no cure and may take decades to manifest. According to the federal Agency for Toxic Substances and Disease Registry, 27 million US workers were exposed from 1940 to 1979, and high exposure risks persist in the construction and mining industries as well as contaminated residential environments.

Researchers with the Environmental Working Group, a Washington, DC-based public interest advocacy organization, have estimated that nationwide, approximately10,000 people per year die of asbestos-related diseases, including asbestosis and lung cancer.

The policy research group the RAND Institute reported earlier this year that more than 700,000 asbestos-related lawsuits have been filed in recent decades, costing industry tens of billions of dollars. The accounting firm Tillinghast-Towers Perrin estimated that in 2003, asbestos litigation cost corporations a total of $8.6 billion, contributing significantly to industry's rising overall litigation costs, which reached $246 billion that year.

The Bush administration has pushed for an asbestos compensation fund as part of its tort law reform agenda to protect corporations from financially damaging "junk lawsuits," what they see as unfounded civil claims.

Proposal Frustrates Corporations and Victims Alike

Though Sen. Specter recently announced that he was revising the bill to cultivate bi-partisan support in the judiciary committee, which he chairs, the trust fund proposal faces growing resistance from both industry and public health advocates.

Insurance groups have argued that the bill is too accommodating of claimants. On April 4, fifteen insurance corporations sent a letter to the senator dismissing the bill as an inadequate response to the "asbestos litigation nightmare."

Daniel Sweet, a Washington representative for Liberty Mutual Insurance, told The NewStandard that one of the main concerns insurers have is the possibility that if the fund were to go bankrupt, victims would regain their right to sue. Defendant corporations have called for complete immunity from litigation, to ensure, in Sweet's words, "a certain ending to this process."

Victims' advocates, on the other hand, charge that the proposed fund would coddle industry with excessive legal protections for corporations and minimal financial security for victims. While the bill purports to offer an efficient, uniform system for compensation, some opponents believe that the actual result would be a step backward.

Jonathan Bennett, public affairs director of the New York Committee for Occupational Safety and Health, a workers' health advocacy organization, said that although the proposed compensation system would be funded by industry, corporations would still be "getting off cheap." The award amounts mandated by the legislation, he projected, would generally be far less than what victims would probably get through the court system.

Many asbestos victims and their families believe that the current plan to eliminate all industry liability could violate victims' rights. The Committee to Protect Mesothelioma Victims, which represents asbestos victims across the country, argues that the legislation would lack the funding to ensure sustainability and would exclude too many victims through rigid medical criteria.

The group's chairperson, Susan Vento, the widow of a mesothelioma victim, reminded Sen. Specter in a recent letter that the reason behind the current asbestos litigation burden is that in the past, "many commercial entities used the product with full knowledge of its dangers, but acted to conceal those dangers from their workers and consumers."

By eliminating the potential for legal redress, Vento contended, the proposed trust fund would silence victims against these public health abuses and impose "more legal burdens and administrative difficulties than what victims presently face in the court system."

According to the draft bill released in February, the amount a victim could receive through the fund would be calculated according to a complex methodology based on the severity of physical damage, the period of exposure, the amount of direct contact with asbestos, and other criteria, and award levels would vary widely across different groups. For instance, asbestos victims with a history of smoking would be eligible for much less compensation than non-smokers, with the implication that asbestos was not the only cause of illness.

Dow Jones News Wires reported on April 12 that senators involved in finalizing the bill had agreed to narrow eligibility even further by excluding exposed workers diagnosed with lung cancer who were unable to demonstrate other physical effects typically associated with asbestos-related illnesses.

According to Dr. Steven Markowitz, an occupational disease specialist with the City University of New York, the degree of exposure and injury required in the draft bill's medical criteria is "grossly unjust" and "doesn't reflect the medical studies. It downgrades the risk of lung cancer for those who have true asbestos exposure but simply haven't developed the scarring."

Beyond Legalities, Advocates Envision Systemic Solutions

Some organizations, including the national labor federation the AFL-CIO, which represents victims of occupational asbestos exposure, and veterans groups representing those exposed through military service, have advocated a trust fund as a more consistent, if less individualized solution to the litigation burden. The rationale is that an organized public fund would reach a broader population of victims and adjudicate cases more efficiently than the court system, which carries a high degree of uncertainty for both claimants and defendants.

Nonetheless, even many of those who support a trust fund in theory remain wary that a bureaucratic mechanism that prioritizes industry over the public interest would exacerbate the asbestos health crisis.

Some advocates have cited past failures of similar trust funds established by asbestos companies to shield financial assets from lawsuits. Many of these have lacked the funding and capacity to absorb large volumes of claims and as a result had to reduce payments to a fraction of the originally entitled amounts.

Doug Larkin, co-founder of the Asbestos Disease Awareness Organization (ADAO), a national victims' advocacy group, suggested that the current senate initiative bears the imprint of corporate interests. "The idea for setting up a trust fund should be to take care of the victims, not to limit the company's liability," he said. "And that's not the way the current legislation is written."

They cautioned the Judiciary Committee in January that the liability protections embedded in the trust fund plan were broad enough not only to hurt victims, but also to limit the government's ability to enforce environmental regulations regarding asbestos.

he ADAO has suggested that if a trust fund is established, the liability provisions should include an "opt-out" clause that would afford all victims an opportunity to pursue civil suits instead of trust fund compensation.

Some opponents of the bill believe the most important aspect of the government's response to asbestos contamination is not the system for compensating victims, but the reduction of future health threats.

Christopher Hahn, executive director of the Mesothelioma Applied Research Foundation, a health advocacy organization, complained that on both sides of the trust fund debate, "All this energy is going into the legal problem; no energy is going to the medical, humane crisis." Largely funded by civil litigation firms and victims' families, the Foundation has endorsed a provision inserted into the draft legislation to ban asbestos, but continues to push for increased government funding to develop new treatments for asbestos-related diseases.

Carolyn Raffensperger, a legal advocate with the Science and Environmental Health Network, an environmental policy group, believes that although the current civil court system does fail asbestos victims because of high litigation costs and inconsistent outcomes, a government trust fund would be merely "a band-aid on a hemorrhage."

The controversy over asbestos litigation, in Raffensperger's view, should serve as an impetus for the government to implement proactive reforms to make courts more responsive to environmental hazards and to ensure that mass tort cases are handled fairly and openly in the future.

Under the current legal system, Raffensperger said, "we give the benefit of doubt to business. … We need to give the benefit of the doubt to public health and the environment."

http://www.baltimoresun.com/news/local/bal-md.rail19apr19,1,1457883.story?coll=bal-local-headlines

 A federal judge declined to block the District of Columbia yesterday from prohibiting the transport of highly hazardous material through the capital, saying he would not interfere with its efforts to protect its citizens from a "catastrophe."

In a ruling with potential implications for Baltimore, U.S. District Judge Emmet G. Sullivan denied CSX Transportation a preliminary injunction that would have prevented the district from enforcing the law, which was passed by the D.C. council in February.

Sullivan rejected the assertion by the railroad - and the Bush administration - that the D.C. government had intruded on federal turf by banning shipments of materials such as chlorine from a 2.2-mile radius around the Capitol. The judge said that because the federal government had not acted to regulate such traffic, the states and the district could act to protect their citizens.

CSX, the only railroad affected, operates two lines in Washington, one of which runs within four blocks of the Capitol. District of Columbia lawmakers contend that such shipments create an inviting target for terrorists.

The decision, if upheld, could have logistical and political ripple effects in Baltimore, where Mayor Martin O'Malley has been at odds with CSX over the railroad's policy of shipping hazardous materials through the city without advance notice.

Some advocates contend that if CSX is forced to reroute some shipments to the west to avoid Washington, those railcars also might avoid passing through Baltimore.

But the railroad argues that the ban heightens the risk to other jurisdictions by ensuring that hazardous materials will spend more time in transit.

A similar measure has been introduced in the Baltimore City Council by Councilman Kenneth N. Harris Sr., who hailed yesterday's ruling as a recognition that CSX "does not have its act together."

Racquel Guillory, O'Malley's press secretary, praised Sullivan's ruling as "a step forward."

"The locals should have the responsibility, or the feds should take the responsibility," she said. But Guillory said the mayor is neither endorsing the Harris legislation nor ruling it out. She said O'Malley welcomes a debate on the issue.

Saying it would file an appeal as soon as possible, CSX released a statement in which it pointed to the Baltimore legislation as a reason to challenge the ruling.

"The District's law could establish a precedent that could lead to a patchwork of similar laws that could virtually shut down rail transportation of critical commodities in the United States," it said.

Sullivan rejected CSX's contention that the D.C. ordinance violates the Constitution's commerce clause. His ruling indicated that other cities' laws might face more scrutiny because Washington's government is analogous to that of a state.

"A favorable decision for the District of Columbia here would not necessarily support copycat municipal ordinances," he wrote.

But in all other respects, Sullivan's opinion soundly rejected the views of CSX and the Bush administration.

Sullivan, originally named to the Superior Court of the District of Columbia by President Ronald Reagan and promoted to the U.S. District Court by President Bill Clinton, ruled that the federal government has not addressed the threat of a terrorist attack on rail shipments. He found that where the U.S. government has not acted, the states - and by extension, the District of Columbia - may act to protect their citizens.

"Complete preemption of state safety laws would leave the country defenseless until the federal government can discover, study and respond to each and every risk," Sullivan wrote.

During hearings on the CSX motion, the judge received a behind-closed-doors briefing from federal safety experts on the government's approach to rail security.

Without disclosing its contents, he indicated that he was not impressed, calling the government's presentation "untested, uncorroborated and unsubstantiated."

Sullivan rejected CSX's argument that the law puts an undue burden on its operations. "These burdens pale in comparison to the potential devastation predicted to occur in the event of a terrorist attack on a railcar transporting hazmats in the Nation's Capital," he wrote.

Statement of Senator Patrick Leahy

Ranking Member, Senate Judiciary Committee

Introduction of Bipartisan Asbestos Legislation

April 19, 2005

This day has been a long time in coming, and I am pleased to join the Chairman of the Judiciary Committee, Senator Feinstein and others in sponsoring bipartisan legislation to address the serious problem of asbestos-related disease. It is the product of years of difficult and conscientious craftsmanship and negotiation. Building on the Committee's work under Chairman Hatch, we have striven to bring a fair and efficient plan to the Congress, a plan that will ensure adequate compensation to the thousands of victims of asbestos exposure, but that also will give due consideration to the industries and the insurers that should, and will, provide that compensation. Our bipartisan legislation does that. Asbestos exposure has created a maze of arduous problems, and we have worked hard to produce a balanced bill that offers fair solutions.

Senator Specter, with whom I have worked so hard on this legislation, rightly calls this one of the most complex issues we have ever tackled. It is not the bill that I would have written, were I alone responsible for its drafting, nor is it the bill that Senator Specter might have produced. Nor should anyone be surprised to hear that the interested groups - the labor organizations, the industrial participants in the trust fund, their insurers, the trial bar - are each less than pleased with some portion of the bill or another. That is the essence of legislative compromise: We have kept the ultimate goal of fair compensation to victims as the lodestar of our efforts, and we have all had to make sacrifices on a variety of subsidiary issues as we worked together to resolve this emergency. What we have achieved is important and a significant step toward a better, more efficient method to compensate asbestos victims.

Asbestos is among the most lethal substances ever to be widely used in the workplace. Between 1940 and 1980, more than 27.5 million workers were exposed to asbestos on the job, and nearly 19 million of them had high levels of exposure over long periods of time. We even know of family members who have suffered asbestos-related disease from washing the clothes of loved ones. The ravages of disease caused by asbestos have affected tens of thousands of American families. We need better health screening and swifter compensation for those affected. In light of the devastating damage it has wreaked, it is hard to believe that asbestos is still being used today, yet it is. This bill will change that as well, protect against yet another generation of victims.

The economic harm caused by asbestos is also real, and the bankruptcies that have resulted are a different kind of tragedy for everyone -- for workers and retirees, for shareholders, and for the families that built these companies. In my home State of Vermont, the Rutland Fire and Clay Company is among the more than 70 companies to have declared bankruptcy.

As Chief Justice Rehnquist noted several years ago, "the elephantine mass of asbestos cases cries out for a legislative solution." (Ortiz v. Fibreboard Corp., 527 U.S. 815, 865 (1999)). In another Supreme Court opinion, Justice Ginsburg declared that "a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims of asbestos exposure." (Amchem Products v. Windsor, 521 U.S. 591, 628-29 (1997)). I agree, the Chairman agrees, Senator Feinstein agrees, and we hope that many others in the Senate will agree.

We are encouraged by the favorable reception that this bill has already generated from a wide array of interested parties. In the past week, I have received letters of support from the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America (UAW), the Veterans of Foreign Wars of the United States (VFW), the Asbestos Study Group, and others. The UAW notes in its April 13th letter, "(The Specter-Leahy Proposal) will provide more equitable, timely and certain compensation to the victims of asbestos-related disease." The VFW letter of April 14 declares: "The national trust fund that you are proposing offers our members who are sick and dying the opportunity to secure timely and fair compensation for the injury they suffered in the course of serving their country." The National Association of Manufacturers also released a statement expressing their hope that this legislation will engender broad support.

I can assure you that garnering this level of consensus has been no small feat. I ask unanimous consent that the text of these letters be printed in the Record.

The bipartisan efforts of the last two years have been productive. With the help of Judge Edward Becker, the primary stakeholders have worked diligently and as a result we have reached a compromise agreement on a national trust fund that will fairly compensate victims of asbestos exposure. With the Chairman's leadership, the disparate interests have reached consensus on many issues such as overall funding of $140 billion and a streamlined administrative process within the Department of Labor. Compensation will be awarded and paid outside of the court system through a simplified administrative claims process. There is no need to prove liability or identify a particular defendant. There is, instead, a claims process wherein all those who exhibit certain medical symptoms and evidence of disease are compensated.

Last Congress I was disappointed by the bill reported by the Judiciary Committee and by the partisan bill, S.2290, that was subsequently introduced as a substitute for that legislation. As compared to those efforts, our bipartisan bill includes significant and necessary improvements: Our bill provides higher compensation awards for victims, with $1.1 million for victims of mesothelioma, $300,000 to $1.1 million for lung cancer victims, $200,000 for victims of other cancers caused by asbestos, $100,000 to $850,000 for asbestosis, and $25,000 for what we call "mixed disease cases." All likely asbestos victims are eligible for medical monitoring, and unlike last year's bills, this bill provides for medical screening for high-risk workers, a relatively low-cost way to help make sure that those most likely to be harmed are diagnosed.

Another essential improvement is the important provision ensuring that victims' awards under the new trust fund will not be subject to subrogation by insurance companies. This means that victims will not have to give up any of their much-deserved compensation just because they received workers' compensation or other insurance benefits in the past. The initial funding of this trust is both more realistic and more substantial than the partisan bill from the last Congress, providing for almost $43 billion of the total $140 billion in the first five years. And unlike the earlier bill, this bill ensures that the contributors into the fund will be a matter of public record, as are their obligations to the fund. Our bill also guarantees that court cases that are well under way, and certainly those that have reached judgment, will not be upset by the new trust fund. Similarly, last year's bill would also have overridden all civil settlements that had any remaining conduct outstanding. Our bipartisan asbestos bill protects those settlements between named defendants and named victims, and also protects settlements that provide for health insurance or health care.

There are other improvements to the trust fund plan over last year's effort. The previous legislation provided no incentive for the fund to start processing claims. The Specter-Leahy- Feinstein bill creates an incentive for the fund to begin processing claims quickly: If it is not operational within nine months, the sickest victims will be able to return to the tort system. If the fund is not operational within 24 months, all victims can return to the tort system.

In improving the way the asbestos legislation handles exigent claims -- those victims who are sickest and may not have long to live -- Senator Feinstein was instrumental in developing a creative solution. I thank the senior Senator from California for her tireless efforts on behalf of sick and dying asbestos victims. These victims should not be forced to wait a year while this new trust fund gets organized and ready to process claims. Under Senator Feinstein's approach, which we adopted, exigent cases would receive an immediate lump-sum payment, and, as I noted earlier, if the fund is not operational in nine months, these sickest victims will be able to continue their cases in court.

As part of this compromise legislation, a particular class of lung cancer sufferers, those who have had significant asbestos exposure but no markings of asbestos-related disease, are not treated as compensable victims for purposes of the asbestos trust fund. Because of the absence of markings, it is not possible to establish asbestos as the cause of their disease. If they develop markings, however, they will become eligible for compensation from the asbestos trust fund. As with many other administrative claims processes, this bill sets a limit on attorneys' fee. In connection with this asbestos fund, the limit is set at 5 percent on victims' awards within the fund. In addition, in order to prevent victims of asbestos exposure from retooling their complaints to circumvent the asbestos trust fund, the bill also imposes a higher burden of proof within the tort system for plaintiffs seeking damages resulting from exposure to silica.

The problems we are addressing are complex, this bill necessarily reflects these complexities, and its drafting was not easy. The compromises we had to make were difficult but necessary to ensure that we created a trust fund that woul