DRAFT Asbestos Bill Includes Huge EPA/OSHA-Based Enforcement Hammers

Date: Feb 08, 2005

A recent draft of the asbestos fund bill (titled the "Fairness in Asbestos Injury Resolution Act of 2005" or "FAIR Act of 2005") being developed by the Senate Judiciary Committee would amend the Occupational Safety and Health Act (OSH Act) to impose major criminal penalties on willful violations of the OSHA asbestos standard regardless of any actual worker injury. If that type of provision is adopted for asbestos, the compromises underlying the adoption of the OSH Act would be undermined, and a dangerous precedent would be set for expanded criminal liability.

In addition, the draft bill would direct the Administrator of the Asbestos Fund to consult with EPA and OSHA at the end of each year (after the bill is enacted) to identify any person or entity that paid a fine to OSHA or EPA for violations of the asbestos rules enforced by those agencies over the course of the year. That person or entity would be assessed and then automatically be liable for a financial "contribution" (payable to the contemplated asbestos fund) equal to 2 times the EPA and OSHA fines for the first violation, 4 times the EPA and OSHA fines for the second violation, and 6 times the EPA and OSHA fines for the third and subsequent violations.

The bill would also direct the United States Sentencing Commission to amend the criminal sentencing guidelines to reflect this and other statutory changes, but the change likely would not be limited to asbestos, but would include the base offense level, adjustments, and special offense characteristics (contained in section 2Q1.2 of the United States Sentencing Guidelines) relating to mishandling of hazardous or toxic substances or pesticides; recordkeeping, tampering and falsification; and unlawfully transporting hazardous materials in commerce.

See the attached memo for supplemental information.

We urge you to let Capitol Hill know this is not the way to go on these issues. If you have any questions, or we can be of assistance, please contact Lawrence P. Halprin at 202-434-4177 or halprin@khlaw.com.