Legislation & Litigation

Montana Creates Special Court to Handle Asbestos Cases

Written By:
Dec 08, 2017
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Written By: Matt Mauney,
December 8, 2017

The Montana Supreme Court on Nov. 28 ordered the creation of an Asbestos Claims Court to oversee hundreds of pending asbestos-related personal injury and wrongful death lawsuits.

At least 540 asbestos cases are tied up in Montana courts, most filed on behalf of people who became sick or died following exposure to asbestos from the now-defunct W.R. Grace vermiculite mine in Libby.

Justices ruled there was sufficient need to create a special court to resolve the claims, many of which date to the early 2000s.

District Judge Amy Eddy will oversee pretrial proceedings. A schedule has not been set.

“It’s an enormous responsibility, but resolution needs to be brought to these cases,” Eddy told the Daily Inter Lake. “It would be devastating to the judicial resources, which are severely underfunded, if they were to be litigated on an individual basis.”

Plaintiffs’ attorneys have until Dec. 28 to file notices of appearance with the Asbestos Claims Court. Eddy anticipates the number of cases could be closer to 1,000, according to The Associated Press.

Libby, a small city in northwest Montana, is the site of one of America’s worst man-made disasters. Nearly 70 years of asbestos-contaminated vermiculite mining killed more than 400 people in Libby and surrounding communities, health officials have said.

Thousands more remain sick from mesothelioma and other asbestos-related diseases.

W.R. Grace Under Bankruptcy Protection

The Montana Legislature passed the Asbestos Claims Court Act in 2001, allowing the state to establish a special court to resolve asbestos lawsuits.

However, the act did not fund the court, and pending bankruptcy issues from a would-be major defendant delayed proceedings. The Montana Department of Justice will seek funding for the new court during the 2019 legislative session.

All legal claims against W.R. Grace & Company — which operated the Libby mine from 1963 until it closed in 1990 — were put on hold after the company filed for Chapter 11 bankruptcy protection in 2001.

Claims against W.R. Grace are now handled through an asbestos trust fund, established when the company emerged from bankruptcy in 2014.

Although the bankruptcy trust protects W.R. Grace from future lawsuits, cases continue to be filed against the state of Montana and other defendants, including Maryland Casualty Co., BNSF Railway and International Paper Co.

Montana agencies continue to claim the state had no legal obligation to warn Grace mine workers or Libby residents of the mine’s dangers.

However, to date, the state has made two notable settlements:

  • 2012: A $43 million settlement with more than 1,300 plaintiffs
  • 2017: A $25 million settlement awarded to more than 1,000 residents and former mine workers

Mesothelioma and other asbestos-related diseases are associated with an unusually long latency period, meaning miners, their family members and members of the Libby community exposed to the toxic mineral decades ago may only now start showing symptoms.

Largest Asbestos Cleanup

Libby is the site of the largest, longest-running asbestos cleanup project in American history.

The U.S. Environmental Protection Agency began the abatement project in 1999. Earlier this year, the agency made a “last call” at the Superfund site, giving residents and commercial property owners a final chance to file cleanup requests.

According to the annual project update, released in July, the EPA received agreements to investigate or conduct cleanups at 226 of roughly 500 remaining properties.

Since 1999, the agency has conducted cleanups at approximately 2,400 properties throughout Libby and nearby Troy, Montana. More than 7,500 properties have been investigated for possible contamination, according to the EPA.

Cleanups include removing toxic amphibole asbestos from the top layer of soil. Indoor cleanups — involving the removal of vermiculite-containing insulation from accessible areas — have been conducted at more than half of the 2,400 properties.

Other project updates:

  • The EPA and Lincoln County Port Authority are working on a long-term vision for redevelopment of the 400-plus acre Port Authority Property that was once home to the Stimson Mill. The plans include opportunities for economic development and recreational use.
  • Montana and EPA officials are working with W.R. Grace to develop a long-term strategy for addressing contamination from the tailings of the Libby mine. Spillway and toe drains from the current impoundment dam are slowly degrading, sparking concern about the dam’s ability to remain stable during a large flood.
  • Of the 40,000 acres included in the Superfund site, the EPA, U.S. Forest Service and Montana officials have identified about 10,000 acres surrounding the mine — known as operable unit 3 — as having the highest levels of asbestos contamination, including amphibole in soil, duff (decayed organic matter), water, sediment and mine waste. The EPA plans to release a feasibility study with possible cleanup alternatives sometime next year.
  • The EPA determined recreational activities such as hiking, camping and fishing in operable unit 3 are safe, with the exception of hiking along Rainy Creek. Residents and visitors should refrain from trespassing on the mine property.

The EPA anticipates deleting portions of the Libby Superfund site from the National Priorities List once cleanup is complete and a long-term management plan is in place.

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