Archive for the ‘Montana’ Category

A pair of Missoula film-makers have been honored with an Emmy award nomination for their film, “Libby Montana,” which details the plight of the residents of the town. Libby and its residents have suffered greatly from asbestos poisoning caused by W.R. Grace & Company as a result of the vermiculite mine it operated in the area.

The documentary, made in 2004 by Doug Hawes-Davis and Drury Gunn Carr of High Plains Films, has been nominated for an Emmy award in the “Outstanding Continuing Coverage of a News Story-Long Form” category. The documentary aired in 2007 on the PBS POV program.

The film has gained some highly positive reviews since its release. Critics rate the film highly for its sensitive treatment of Libby residents, and for the voice it provides for the town and those who live there.

In the “San Antonio Current,” for example, critics praised the film’s objectivity, and the way in which Doug Hawes-Davis and Carr allowed the story to tell itself.

“If the political pressure to prosecute Grace’s executives to the full extent of the law persists, it will be due in part to this deeply moving film. Many critics have praised the “objectivity” of filmmakers Doug Hawes-Davis and Drury Gunn Carr; what they mean is that the directors let the headlines, residents, and Lovick tell the story. This time-tested documentary technique seems fresh in the wake of last year’s much-more-publicized and vocally political Fahrenheit 9/11, but at its root is the recognition that Libby, Montana isn’t a red-state or blue-state story. It is a story about American democracy and American capitalism, and the battle that must constantly be waged to keep the latter from consuming the former.”

At the PBS POV web site, quotes from Doug Hawes-Davis and Carr themselves highlight the importance of remembering the story of Libby and the tragedy the town has suffered.

Carr said, “Even as we documented the history of the town and the cleanup efforts, the story of Libby took on a larger life as Congress was forced to consider what to do about the millions of homes and other buildings in the U.S. filled with vermiculite from Libby.”

And to that, Hawes-Davis added, “Libby is a hardworking, blue-collar community that personifies the American Dream, but the story we had to tell was about the dream gone horribly wrong. Industrialists, politicians, workers and ordinary citizens all play a role in this American tragedy.”

The award’s winner will be announced in New York, in September.

The United States Department of Health and Human Services, in conjunction with the United States Environmental Protection Agency, announced this week in a press release the launch of the Libby Amphibole Health Risk Initiative, a series of projects created for the purposes of understanding the health effectives of low-level exposure to the asbestos found in Libby, Montana.

Health and Human Services Secretary Mike Leavitt said, “My interest in Libby dates to the first of my visits with the people of that community with Senator Max Baucus, who deserves credit for his tireless and passionate work on behalf of that community.

“Too little is currently known about exposure to lower levels of Libby asbestos. We hope this effort will expand our knowledge of potential and real health issues that could be facing this group of individuals.”

The five-year initiative will cost $8 million, and will be jointly funded by the HSS Agency for Toxic Substances and Disease Registry, and the EPA. The study will focus on determine whether exposure to low levels of “Libby asbestos” increases the risk of developing lung disease, cancer, chronic illnesses, auto-immune diseases or other health problems. Currently, it is known that high level asbestos exposure can cause several types of cancer, including mesothelioma, lung cancer, and colorectal cancer, as well as chronic lung and upper respiratory conditions.

EPA Administrator Stephen L. Johnson said of the new initiative, “Since 1999, EPA has been working closely with the community of Libby to clean up contamination and reduce risks to human health. In collaboration with HHS, EPA will continue to help protect the health and well-being of the Libby residents.”

The new project will ask for input and advice from residents and organizations in Libby, and will include the following features:

• Comparison studies on people exposed to Libby asbestos during childhood, and people who weren’t, and their health status and conditions.
• Extended evaluation of residents who were exposed to Libby asbestos, including people with differing levels of environmental exposure.
• Assessment of the different types of adverse health effects that may result from exposure to Libby asbestos.
• Continuation of a study by the HSS Agency for Toxic Substances and Disease Registry and the National Institute for Occupational Safety and Health which compares film and digital chest x-rays to determine which is best for diagnostic purposes.
• Strengthening existing public health tracking systems such as the State Cancer Registry and patient health record databases to provide better links between exposure levels and expected health outcomes.

U.S. Bankruptcy Judge Judith K. Fitzgerald this week approved an agreement which will finally see W.R. Grace & Company pay up for the costs of cleaning up the asbestos-contaminated town of Libby, Montana.

The agreement states that W.R. Grace & Company will reimburse the federal government $250 million for money it has already spent investigating and cleaning up in the town. According to an order signed during a recent bankruptcy hearing the company has thirty days in which to pay the money.

W.R. Grace & Company agreed to pay the $250 million in March, to settle a bankruptcy claim brought by the government for the cost of past, present, and future clean up of contaminated homes, businesses, and schools in Libby.

The wide-spread asbestos contamination in Libby has long been known as the cause of the deaths of hundreds of people. More than two thousand residents and workers have been diagnosed with asbestos-related diseases such as asbestosis and mesothelioma in the past decades.

The source of the contamination is a vermiculite mine which was once owned and operated by W.R. Grace & Company between 1963 and 1990. The mine is contaminated with asbestos, leading to exposure and disease not only for mine workers, but for residents of Libby as well.

Millions of tons of the contaminated vermiculite were shipped to hundreds of processing plants across America. The asbestos-containing vermiculite was used in household insulation (under the brand name Zonolite), fireproofing materials, gardening materials, and many other products.

The $250 million settlement for the cost of cleaning up Libby is the largest ever reimbursement settlement for the government’s Superfund Program, according to the Environmental Protection Agency.

Even so, Justice Department attorney James D. Freeman claims the government made a “substantial compromise” in accepting the settlement W.R. Grace & Company offered. However, prompt payment of the money will allow the government to continue cleaning up the town without any delays due to budget constraints.

A recent estimate from an EPA official indicated that to date $168 million has been spent cleaning up Libby, and an estimated $175 million will be needed to complete the work over the next three to five years. That means a shortfall of almost $100 million, which the government will likely cover.

The government filed suit to retrieve the costs of cleanup in 2001, shortly after W.R. Grace & Company filed for Chapter 11 bankruptcy. The EPA won a judgment for $54 million in 2003, but that money was never paid. The $250 million settlement includes the original $54 million.

Last month, lawyers for W.R. Grace & Company requested that the United States Supreme Court review the decision of an appellate court which had restored important charges to the government’s criminal case against the company. Government prosecutors are strenuously opposing the company’s request.

In a brief submitted by government prosecutors on Friday May 23, the request was made to the high court to deny W.R. Grace & Company’s hearing request. If the prosecutors get their way, the way may finally be cleared for the trial-which has been delayed for almost two years-to begin.

In its thirty pages, the brief says, “There”is a strong …need to prevent any additional, unnecessary delay of the trial. Some witnesses and many victims…are dying from mesothelioma, asbestosis, and other asbestos-related diseases. We cannot escape the fact that people are sick and dying as a result of this continuing exposure. As time passes, more witnesses will be unavailable to testify, and fewer victims will be able to attend the trial.”

W.R. Grace & Company has requested that the high court review an order handed down by the 9th U.S. Circuit Court of Appeals. The appellate court overturned several decisions which were handed down by U.S. District Judge Donald Molloy of Missoula in August 2006.

Molloy’s decisions effective brought the prosecution to a halt, and would have prevented the government prosecutors from charging W.R. Grace & Company with “knowing endangerment,” a violation of the federal Clean Air Act.

The problem was, the “knowing endangerment” charge is at the center of the prosecution’s allegations that the company’s top executives knowingly and intentionally concealed the fact that the asbestos-contaminated vermiculite mined near Libby, Montana, was dangerous. A conviction of knowing endangerment carries with a prison sentence of up to fifteen years.

Another of Molloy’s decisions which stymied prosecutors was the conclusion that “asbestos” should be defined not according to statutory definition, but according to a regulatory definition enacted by the EPA. Molloy also ruled that he would exclude any evidence which was not limited to the EPA definition, which is much narrower than the statutory definition.

In September 2007, the 9th Circuit Court overturned Molloy’s decisions, thus reinstating the charges of knowing endangerment. W.R. Grace & Company appealed and asked that the appellate court hear its case a second time. The hearing was denied, and the company brought its appeal to the Supreme Court.

W.R. Grace & Company attorneys are arguing on a technicality. They claim that when the Libby mine was in operation, the federal government did not regulate minerals which were specific to the asbestos contaminating the mine. The attorneys argue that this means the government cannot use the federal Clean Air Act to prosecute the company.

W.R. Grace & Company’s petition claims that the government “is trying to convict defendants of violating the Clean Air Act by releasing substances that the government itself has excluded from the list of substances covered by the Act.”

The Supreme Count now has to decide whether it will hear the case. If it declines to do so, the 9th Circuit Court rulings will stand, and the case itself may finally begin.

If the Supreme Court decides to hear the case, the earliest it can do so is October, meaning many more months of delays will ensue.

Libby, Montana - The Environmental Protection Agency says a stop work order has been leveled against some of the contractors who are cleaning up asbestos contamination in Libby, Montana.

According to the EPA Libby Team Leader, Paul Peronard, the stop work order was given on the basis of very serious health and safety issues, and hopes that work will resume within a week, as soon as the problems have been resolved.

The EPA announced the stop work order at a recent Libby community meeting, saying that the order was issued because Air, Soil and Water used river water in portable pumps being used to carry out work, and also because they did not use adequate respiratory protection.

In the meantime, clean-up project managers have explained that samples are still being taken in certain areas, to determine the extent of the contamination and determine the size and scope of the clean-up measures required for locations such as the Stimson Mill site and the Burlington-Northern Santa Fe yards.

However, the subject of sampling at the W.R. Grace site has not revealed any new information, and residents have become concerned that the company itself may end up sampling its own sites.

Paul Peronard says the EPA is beginning to finalize clean-up plans for some of the smaller areas in Libby. “We’re going to start working at some of those areas where we’ve done extensive clean-ups, we’ve got a pretty good handle on what’’ going on there. We’re still 2 or 3 years out from getting to final decisions on the larger Libby.”

So far, EPA-supervised clean-up of asbestos and vermiculite has been carried out on around 1,000 homes and business sites. This year, 150 clean-ups are so far scheduled, as well as two creeks.

One problem that may delay completion of the clean-up in Libby is the EPA’s recent discovery that Libby soil is a significant source of vermiculite exposure for many residents. In fact, outdoor activities may pose a higher risk than indoor activities, especially in homes where vermiculite and asbestos is well sealed.

The results came from a study which measured asbestos exposure levels for a range of both indoor and outdoor activities, from watching TV to mowing the lawn. The EPA tested these activities at a range of different locations, including both clean and un-treated sites. Testers were equipped with air filters near their chests that collected airborne samples, to approximate the types of airborne particles participants would be exposed to. The results indicated that outdoor activities had a higher exposure risk, but that Libby residents weren’t being significantly exposed from activities such as walking around town.

Last week, W.R. Grace & Company won an appeal it had asked for last year, concerning a ruling made by U.S. District Judge Donald Molloy. Another appeal the company has asked for concerns regulations governing the types of minerals with which the company’s Libby, Montana vermiculite mine was contaminated.

The appeal last week was concerned with U.S. District Judge Donald Molloy’s request for a pretrial list of witnesses and evidentiary documents from the government. The request was made in connection to the government’s asbestos case against W.R. Grace & Co.

W.R. Grace & Co. was indicted in 2005 on charges of conspiring to conceal the health risks of the Libby mine and its asbestos-contaminated vermiculite for residents of the town. In March 2005, Judge Molloy set a discovery schedule for the case, giving the government approximately six months to create a final list of the witnesses and exhibits it planned to use in the trial.

However, the government continued expanding on its witness and document list well after the six month limit. In response Judge Molloy ordered in December 2005 that the government cease adding new witnesses. The government appealed, saying that Molloy’s ordered were an abuse of his discretion.

In July 2007, a panel of three 9th US Circuit Court of Appeals judges agreed, and said that the district court had stepped outside the bounds of its authority. However, W.R. Grace & Co. asked for a review by a larger panel of judges. The new panel issued their opinion last week, and upheld the orders issued by Judge Molloy.

At the same time, W.R. Grace & Co. has been appealing for another reason.

The company’s attorneys are arguing that winchite and richterite, the minerals that made up the asbestos contaminating the Libby mine, weren’t regulated by the federal government. The attorneys say that this means the company can’t be prosecuted under the federal Clean Air Act.

Again, Judge Molloy agreed with the company, and again his ruling was overturned by the 9th US Circuit Court of Appeals. And W.R Grace & Co. is now asking that the Supreme Court reserve the decision.

W.R Grace & Co.’s petition says that the government “is trying to convict defendants of violating the Clean Air Act by releasing substances that the government itself has excluded from the list of substances covered by the act.”

The government must file a response within thirty days, after which the Supreme Court will decide whether or not it will hear the case. If the court declines, the decision will stand.

That means the trial itself might finally get started. If the Supreme Court decides to hear the case, it won’t do so until October 2008 at the earliest.

Montana – A federal appeals court has ruled that U.S. District Judge Donald Molloy’s request for a pretrial list of witnesses and evidentiary documents from the government is not an abuse of the Judge’s discretion.

The request was made in connection to the government’s asbestos case against W.R. Grace & Co. and involves public asbestos exposure in Libby, Montana, where the company once operated a vermiculite mine.

The vermiculite mine turned out to be contaminated with asbestos, and as a result more than two hundred Libby residents—including people who never worked at the vermiculite mine—have died from asbestos-related diseases, and almost two thousand residents have been diagnosed.

W.R. Grace & Co. was indicted in 2005 on charges of conspiring to conceal the health risks of the Libby mine and its asbestos-contaminated vermiculite for residents of the town.

In March 2005, Judge Molloy set a discovery schedule for the case, giving the government approximately six months to create a final list of the witnesses and exhibits it planned to use in the trial.

The government was able to meet the six month deadline, but said it would continue its investigation and “reserved the right to update its witness list and exhibit list through the close of all evidence at trial.”

The defense subsequently became concerned about the government’s witness list, the size of which continued to increase long after the six month period. In response Judge Molloy entered an order in December 2005 to limit the government’s pretrial list to “those witnesses that have been disclosed as of the filing of this order.”

Upon appealing the ruling, the government argued that the judge did not have the authority to either require or enforce the pretrial list. In addition, the government said that even if he did have the authority, the orders were an abuse of the judge’s discretion.

In July 2007, a panel of three 9th US Circuit Court of Appeals judges agreed, and said that the district court had stepped outside the bounds of its authority.

However, W.R. Grace & Co. asked for a review by a larger panel of judges. The new panel issued their opinion this week, and upheld the orders issued by Judge Molloy.

In making the ruling, the panel said, “We hold that the District Court did have the authority to issue and enforce its pretrial orders compelling the government to disclose its witness list and did not abuse its discretion in doing so.”

Neither the government nor W.R. Grace & Co. has so far commented on the new ruling.

Libby, Montana – New data from the Environmental Protection Agency suggests that the soil in Libby, Montana is a significant potential source of vermiculite exposure for residents. This conclusion may cause the EPA to redefine how it assesses contamination risks for sites undergoing remediation, and to redefine what it considers to be a “clean” site.

The results of the research have been surprising to many people. The data suggests that the main site of asbestos exposure for Libby locals is actually right outside their homes, and that levels of indoor exposure are probably coming from tracking vermiculite in from outside locations. However, the EPA stresses that the data they gained from the study doesn’t apply to homes where asbestos has been disturbed, or where asbestos is not well contained within discrete areas of the home.

Paul Peronard, an EPA On-Site Coordinator says, “This is a powerful data set. It will help us define the first part of endgame.” Meaning, it will help the EPA define what constitutes a clean site, and what needs to be done to make a site clean.

The investigation carried out on Libby exposure measured asbestos exposure levels for a range of both indoor and outdoor activities, from watching TV to mowing the lawn. The EPA tested these activities at a range of different locations, including both clean and un-treated sites. Testers were equipped with air filters near their chests that collected airborne samples, to approximate the types of airborne particles participants would be exposed to.

Many community residents have long been questioning how site risk is assessed in the town of Libby. The Environmental Protection Agency hopes that they new data they’ve gained will help in answering those questions. For example, they hope the data may answer questions such as whether a property with heavily vermiculite-contaminated soil is more or less an exposure risk than a home where asbestos is sealed within its walls.

Another important conclusion from the data is that the EPA now believes that tracking down and removing “visible vermiculite” is even more important. In addition, the report suggests that simply walking around Libby does not exposed people to large amounts of asbestos.

Unfortunately, however, while the data have produced some useful conclusions, it also demonstrates that the EPA may have serious problems in determining how successful its remediation efforts are. Variables such as wind direction, vegetation cover, and soil moisture could all affect the outcome of the tests.

Another problem is that the data does not factor in “background asbestos” or the fact that asbestos that was naturally present and separate from the mine had already exposed Libby residents to vermiculite.
As a next step, the U.S. Geological Survey plans to carry out a study of local sites to try and determine whether or not vermiculite contamination has been partly due to natural causes.

The ASARCO mining company, which filed for bankruptcy in 2005, may be able to emerge this year now that parent company Grupo Mexico has agreed to assume the responsibility for paying asbestos lawsuit claims made against the company.

Grupo Mexico has made the offer partly to prevent the ASARCO company from putting itself up for sale. The parent company has therefore agreed to sponsor a reorganization plan that involves paying all legitimate claims that have been made against ASARCO.

Some estimates put the value of claims and other liabilities at tens of billions of dollars.

Among the total is several billion dollars worth of lawsuits relating to exposure to asbestos, lead, and other toxins. More than $165 million will be allotted to clean-up environmental damage in eight different Montana sites.

ASARCO filed for bankruptcy in 2005, and during the process a bankruptcy judge removed Grupo Mexico’s control over the company due to allegations that the parent company was stripping ASARCO’s assets.

On Monday, ASARCO filed documents indicating that it has reached an agreement with entities it owes money to, along with its intentions to sell itself to the highest bidder. The documents also included references to having six interested bidders.

The company said that the sale would raise enough money to resolve all asbestos and toxin-related liabilities as well as to fund the environmental clean-up. The company owns a total of twenty sites that are included on the EPA’s Superfund list.

Last month, the company managed to keep Hayden, the community that houses an ASARCO smelter, off the Superfund list by pledging to spend $13.5 million on soil testing on community property, and to cover the costs of any clean-up that might be needed.

The EPA had previously found carcinogens contaminating soil in Hayden and Winkelman, located nearby. Residents hope that ASARCO will either buy their contaminated properties, or pay for relocation.

Some residents have noted that the company seems willing to solve the community’s environmental problems, but it hasn’t always been that way.

Prior to the company’s bankruptcy declaration it used a 1912 deed to sue community residents to prevent them making claims for environmental damage the company had caused. The company alleged that the deed granted it the right to emit unlimited amounts of “smoke, dust, fumes and other deleterious matter” from the Hayden smelter without having to assume any liability for damage it might cause.

W.R. Grace & Co. has asked the United States Supreme Court to hear an appeal in a criminal case against the specialty chemical company that once mined asbestos-contaminated vermiculite in the town of Libby, Montana.

W.R. Grace & Co. manufactured asbestos-containing products from 1938 through to the 1970s. The company also owned and operated a vermiculite mine in Libby that was contaminated with asbestos. Millions of homes throughout the country contain Zonolite, an insulation product containing the contaminated vermiculite, and thousands of Libby residents have developed asbestos-related diseases such as mesothelioma and asbestosis as a result of working in or living near the mine.

After settling its current and future asbestos-related claims with the creation of a $3 billion trust fund, the company, as well as six of its former executives, still faces criminal charges relating to the contamination of Libby.

Under the terms of the recently-created settlement, W. R. Grace will pay up to $1.8 billion into the trust fund initially. An additional $1.55 billion will be paid into the fund between 2019 and 2034.

The trust fund is to be further supplemented by the addition of W.R. Grace & Co. stock options worth tens of millions of dollars, which will be available at a reduced price relative to current market value. The chemical company also agreed that its remaining insurance coverage would also be added to the fund.

The creation of the settlement trust fund is one more move that will allow the company to eventually emerge from Chapter 11 bankruptcy.

The criminal charges relate to the company’s activities in Libby that involved the release of asbestos that injured or killed more than one thousand residents of the town. The company may face fines of up to $280 million, and the individuals may face prison terms of up to fifteen years, if convicted.

The company has also been charged with interfering with government clean-up efforts in the town.

In its appeal, W.R. Grace asked the high court to overturn a ruling made by a lower court. The ruling adopted a government definition of asbestos developed under the federal Clean Air Act.

The former vermiculite-mining company claims that according to the government definition, only 5% of the material is released in Libby is applicable to the criminal charges in the case.