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Update on Asbestos Policy (12-16-02)

Several actions over the past two years have been responsible for a renewed interest in the health dangers of asbestos. In a 1999 Supreme Court ruling that revoked a $1.5 billion class action settlement, the justices ruled that the settlement had compromised the rights of the victims and that it was up to Congress to develop legislation to help move the numerous asbestos lawsuits through the court system at a faster pace. The second action was a series of Seattle Post-Intelligencer articles beginning in November 1999 about the Libby, Montana, vermiculite mine and nearly 200 asbestos-related deaths there over the last 40 years.  The newspaper articles prompted a public outcry, and two federal investigations into government agencies' failure to warn Libby residents and workers. Other incidents regarding levels of asbestos in consumer products have also incited legislative activity in Congress and Environmental Protection Agency (EPA) regulatory activity. Asbestos is classified as a Group A carcinogen by the EPA.  Although the EPA issued a rule prohibiting the manufacture, processing, and importation of most asbestos products in 1989 due to the related health problems, a 1991 ruling by the US Fifth Circuit Court of Appeals, in response to a lawsuit brought by the American and Canadian asbestos industries, essentially negated the rule.  The lawsuit argued that the EPA had not thoroughly studied alternatives to an asbestos ban.  The primary health concern of asbestos exposure for the general public is lung cancer, although cancer of the esophagus, stomach, and intestines are also concerns.

Most Recent Action
A recent report released by Sebago Associates, which was commissioned by the American Insurance Association, discusses the costs to workers at now-bankrupt firms from asbestos-related litigation. The report estimates that the cost of asbestos claims has resulted in more than 60 companies filing for bankruptcy. The rate of firms filing for bankruptcy is accelerating, in part, according to the report, due to joint and several liability, meaning "that any firm in production chain could potentially be held accountable for the entire cost of the damage associated" with asbestos. The report's conclusion is that "The current system [for handling asbestos claims] does not appear to [be] an optimal mechanism for doing so." In related news, lawyers for claimants suing Halliburton Co. and Honeywell International Inc. have indicated that they will consider a mass settlement in light of the recent election that resulted in the Republicans controlling both chambers of Congress. Momentum has been building in the past few years on Capitol Hill to pass legislation regarding asbestos-related claims, and a GOP controlled Congress may increase this likelihood. (12/16/02)

On October 23rd, the Environmental Protection Agency (EPA) announced the addition of the asbestos site in Libby, MT, to the National Priority List for Superfund sites. The National Priority List (NPL) designation will make the site eligible for extensive, long-term cleanup under the Superfund program. In a January 2002 letter to the EPA, Montana Governor Judy Martz (R) identified the Libby Asbestos site as the state's highest priority site and requested that it be added to the NPL. The agency placed an announcement in the Federal Register in February 2002 seeking public comment on the proposed designation. (10/30/02)

The annual filings for asbestos-related claims have risen sharply over the last few years. At the same time, the number of bankruptcies has also jumped as corporations in a range of sectors are confronted with massive liabilities. According to a recent report by the RAND Institute for Civil Justice, the majority of these new claims are for "nonmalignant injuries." In their opening statements to a Senate Judiciary Committee hearing on September 25th, several Senators noted that legislation is needed to help ensure that claimants receive appropriate compensation both now and in the future, especially in lights of the fact that so many defendant companies are declaring bankruptcy. No specific legislation was put forward at the hearing, but there was bipartisan support in the committee to draft such legislation. In related news, the U.S. Supreme Court -- whose decisions are a major driving force behind the drafting of asbestos legislation -- announced that it will allow a massive case including thousands of claimants to proceed despite claims by two of the 250 corporate defendants that a mass trial would be unconstitutional. (9/30/02)

On June 20, 2002, the Senate Environment and Public Works Subcommittee on Superfund, Toxics, Risk and Waste Management held a hearing on the status of asbestos remediation for the town of Libby, Montana. Libby is home to the now-closed and bankrupt W.R. Grace and Co. vermiculite mine, which has been the source of asbestos-related health problems for Libby miners and residents. The hearing brought together Sen. Patty Murray (D-WA), Libby residents, federal and local health specialists, and an EPA representative to discuss past events at Libby as well as future directions for health care and remediation for the area. Sen. Murray has introduced legislation (S. 2641) in the Senate which seeks to ban asbestos in the US.  The EPA's current concerns are the cleanup of vermiculite insulation in Libby homes and the possible contamination of hundreds of nationwide processing plants that accepted Libby vermiculite. Concerns of the other witnesses included 1) expanding the regulation of asbestos beyond the six current forms, 2) providing long-term health care for Libby residents, and 3) continuing asbestos-related research. (7/2/02)

Current Congress
On July 31, 2001, the Senate Committee on Health, Education, Labor, and Pensions (HELP) held a hearing to look into asbestos issues, with the possible goal of beginning to form regulations for the production and use of the substance.  Sen. Patty Murray (D-WA) chaired the hearing that aimed to look at what has and should be done to regulate asbestos.  Currently, asbestos is not a banned substance and is used in such products as roofing materials, cement, and car brakes.  Rep. Dennis Rehberg (R-MT) and Sen. Max Baucus (D-MT) both spoke at the hearing, adding their comments to what the federal government can do to prevent situations like that in Libby from occurring again. Full text of opening statements and witness testimony can be found at the HELP Committee's website. (8/7/01)

On July 24, 2001, in a letter to the General Accounting Office, Rep. Dennis Rehberg (R-MT) requested a federal inquiry into how EPA has dealt with the asbestos issues in Libby, MT where asbestosis has been linked to nearly 200 deaths.  He called for a thorough audit of EPA actions in Libby, asking for justification for the estimated $30 million that the EPA will have spent in the town by the end of this year.  Rehberg's letter also asked for more information about possible corporate influence over politicians and how the clean-up money is being spent.  The tremolite asbestos was released into the air as a byproduct of vermiculite mining operations conducted by W.R. Grace and Co.  Local citizens assert that the state had knowledge about the asbestos problems in Libby for decades but never took action.  They believe that Rehberg should focus his attention on the state and why it never undertook an investigation. (8/7/01)

On April 3, 2001, the EPA released an internal audit revealing that the agency knew of the public health problems related to the W.R. Grace vermiculite mine in Libby, Montana years before mitigation action was taken. The audit, spurred by internal accusations made in the summer of 2000, found that the EPA knew about problems as early as 1977. Among other correspondence, several reports were circulated at the EPA in the early 1980's that illustrated the health effects of asbestos dust among workers at the Libby mine. According to the report, information about problems with asbestos contamination did not result in regulations or controls that might have protected the citizens of Libby. Clean-up and mitigation of public health problems stemming from activities at the Libby mine seem to have been sidelined for many years, not just at the EPA but at state environmental and health agencies as well. The EPA has been performing mine cleanup at Libby under Superfund since 1999.

The EPA audit was released one day after W.R. Grace filed Chapter 11 bankruptcy. The company joins ranks with 26 other major companies with business in asbestos seeking protection from lawsuits in the past year. Grace claimed that it could not remain afloat while litigating the barrage of asbestos-related lawsuits recently brought against the company. Chapter 11 status prevents any further claims against the company. The lawsuits now pending against Grace will probably take years to be resolved now that the company has declared bankruptcy, according to plaintiff attorneys. Meanwhile, the company will stay open for business. Grace was allowed by the bankruptcy judge to continue to pay medical expenses to Libby residents and make its $250,000 annual donation to a hospital in Libby that runs a center for asbestos-related disease. (4/5/01)

For events in 1999 and 2000, see AGI's asbestos update at

According to the EPA Asbestos Home Page:  "Asbestos is a problem because, as a toxic substance and a known carcinogen, it can cause several serious diseases in humans. Symptoms of these diseases typically develop over a period of years following asbestos exposure."  A 1989 ban on asbestos was overturned by the U.S. Court of Appeals in 1991.  Currently, only six products that contain asbestos are subject to a ban by the EPA.  Because the EPA rule was overturned, it is up to the consumer to inquire about the presence of asbestos in particular products.  The EPA website provides information about where asbestos is commonly found, how it might invade groundwater, and other commonly asked questions.  According to the U.S. Public Health Service, there are four contributing factors to asbestos carcinogenicity including how respirable it is, its bio-persistence, mineralogy, and aspect ratio.  It is the aspect ratio which is most under debate, as long-thin fibers are thought to be the most toxic.

In Libby, 192 people have died over the last 40 years, and 375 more have been diagnosed with asbestos-related fatal diseases.  In early 1999, 26,000 former and present Libby residents filed a class-action lawsuit against the W.R. Grace Co. who owned the vermiculite mine for more than 40 years. Mining vermiculite produced a form of asbestos known as tremolite,  which is still found in quantities far above federal safety limits in the mine's tailing pipe. There was also some concern that the vermiculite ore had contaminated other plants across the country to which it had been shipped.  After years of debating who had the authority to address the environmental and medical problems of Libby, and whether the statute of limitations on a criminal investigation had expired, the EPA finally insisted on May 26, 1999, that the site must be cleaned up.  Less than a week later the EPA announced that it had known about the asbestos situation in Libby since the mid-1980's and found that asbestos-related deathrates would be nearly 100%, yet had done nothing about it. This spurred the EPA to request an outside agency to perform an audit of the activities surrounding the mine that was released in April of 2001. W.R. Grace Co. has been ordered to clean up the Montana site and is expected to finish in the summer of 2000.

Senate Environment and Public Works Subcommittee on Superfund, Toxics, Risk and Waste Management
Hearing on asbestos remediation activities in Libby, Montana
June 20, 2002

The Bottom Line
On June 20, 2002, the Senate Environment and Public Works Subcommittee on Superfund, Toxics, Risk and Waste Management held a hearing on the status of asbestos remediation for the town of Libby, Montana.  Libby is home to the now-closed and bankrupt W.R. Grace and Co. vermiculite mine, which has been the source of asbestos-related health problems for Libby miners and residents.   The hearing brought together Sen. Patty Murray (D-WA), Libby residents, federal and local health specialists, and an Environmental Protection Agency (EPA) representative to discuss past events at Libby as well as future directions for health care and remediation for the area.  Sen. Murray has introduced legislation (S. 2641) in the senate which seeks to ban asbestos in the US.  The EPA's current concerns are the cleanup of vermiculite insulation in Libby homes and the possible contamination of hundreds of nationwide processing plants that accepted Libby vermiculite.  Concerns of the other witnesses included 1) expanding the regulation of asbestos beyond the six current forms, 2) providing long-term health care for Libby residents, and 3) continuing asbestos-related research.

Members Present
Sen. Max Baucus (D-MT)

Panel 1
Senator Patty Murray (D-WA)

Panel 2
Ms. Marianne Horinko, Assistant Administrator for the Office of Solid Waste & Emergency Response, EPA
Dr. Gregory Wagner, Director of Division of Respiratory Disease Studies, National Institute for Occupational Safety and Health (NIOSH)
Dr. Henry Falk, Assistant Administrator for the Agency for Toxic Substances and Disease Registry (ATSDR)

Panel 3
Dr. Michael Spence, State Medical Officer, Montana Dept. of Public Health and Human Services
Dr. Brad Black, Lincoln County Health Officer and Director, Clinic for Asbestos Related Disease
Mrs. Pat Cohan, nurse, Clinic for Asbestos Related Disease
Mr. John Konzen, Lincoln County Commissioner

Hearing Summary
Opening Statements
Sen. Max Baucus (D-MT), acting as chairman in the absence of Sen. Barbara Boxer (D-CA), opened the hearing by describing Libby, Montana as a small town beset by "massive" asbestos problems stemming from the activities of the now-defunct W.R. Grace and Co. vermiculite mine.  He accused the W.R. Grace mine, which closed in 1990, of shrinking from its duty to help alleviate the problem it created by not telling miners of the possible health problems associated with the asbestiform mineral, tremolite, that comprised a portion of the vermiculite it mined.  He outlined the progression of events in Libby from the supply of free, but contaminated, mine byproduct material that W.R. Grace gave to the residents for use in gardens during the heyday of the mine in the 1960's and 70's, to the inevitable appearance of mesothelioma, asbestosis, and lung cancer in the miners and residents of Libby.  Baucus, who has been closely involved with this issue, was eager to learn from the EPA what its current plans are for the cleanup of Libby.

Witness Testimony
Panel 1
Sen. Patty Murray (D-WA) began her testimony by explaining that her interest in Libby partly stems from the closeness of Libby to Washington State, and that her interest grew with the publication of a series of articles about Libby by Andrew Schneider in the Seattle-Post Intelligencer.  She noted that the dangerous W.R. Grace vermiculite is not confined to Libby, as the vermiculite was also processed in approximately 300 plants around the country.  She went on to say that while using asbestos in most new products is illegal, asbestos legally persists in many older products like construction materials and automobile brakes.  Murray noted that approximately twenty countries have banned asbestos, and that it is time that the US does likewise.  To achieve this, she has introduced the Ban Asbestos in America Act of 2002 (S. 2641) in the Senate requiring the EPA to ban asbestos by 2005.  Exemptions to the bill may be granted provided that no substitute material for asbestos is available and that the exemption will not put the public or environment at excessive risk.  The bill also calls for a public education campaign on the danger of asbestos, the inventorying of products that contain asbestos, the tracking and treatment of asbestos diseases, and the possible expansion of the number of regulated asbestos forms.  Murray concluded her remarks by accusing the EPA of reacting too slowly to the Libby situation.

Panel 2
Ms. Marianne Horinko, representing EPA Administrator Christie Whitman, testified on EPA's past and future actions concerning asbestos contamination in Libby.  Horinko said that the EPA initiated a Superfund investigation in November 1999 and began cleanup of the mine in June 2000.  In May 2002, the EPA initiated a new cleanup plan that includes home isulation that contains vermiculite.  This cleanup, consisting of 55 Libby homes, is slated to begin in late June/early July 2002.  To dispose of the insulation, an area at the Lincoln County Landfill will be set aside for construction of an asbestos "cell" in mid July.  Horinko stated that the EPA is now concerned with other sites in addition to Libby that may need to be cleaned up.  She noted that approximately 240 plants across the country may have processed Libby vermiculite, and that 22 of these sites require closer examination by the EPA.

Dr. Gregory Wagner began his testimony by briefly defining asbestos as a group of naturally occurring fibrous minerals that have useful heat insulating properties.  Because of their usefulness, asbestos is still used in products despite the known health concerns, he said.  The term asbestos refers to six different minerals (chrysotile, crocidolite, amosite, tremolite, actinolite, and anthophyllite) which are regulated by the Occupational Safety and Health Administration (OSHA), the Mine Safety and Health Administration (MSHA), and the EPA.  Wagner said that NIOSH, at the request of OSHA, began its investigation into lung problems in Libby in 1980 and concluded that "occupational exposure" to the vermiculite caused high rates of asbestos-related diseases.  The official culprit, he noted, was tremolite asbestos, which makes up only 10 to 20% of the fibrous minerals in the vermiculite.  He argued that it is important to look at the other, unregulated forms of asbestos and determine health risks associated with those.  Wagner also said that NIOSH is presently looking into vermiculite from other mines to determine if there is an asbestos risk and, if so, how does it compare with Libby.

The third witness on panel 2, Dr. Henry Falk, testified that his group, the Agency for Toxic Substances and Disease Registry (ATSDR), became involved with Libby in November 1999 and conducted preliminary medical tests on Libby residents in November 2000 and July 2001.  The final report from these two testing episodes is not complete, Falk stated.  He also noted that ATSDR has an ongoing "mortality review" which has already indicated that mortality from asbestosis in Libby from 1979 to 1998 was 40 to 60 times higher than expected.  He concluded by echoing Sen. Murray's and Ms. Horinko's concerns over the other sites that have processed Libby vermiculite, saying that ATSDR is looking into the matter.

Panel 3
Dr. Michael Spence began his testimony by reminding the committee that just being a resident of Libby puts one at high risk for mesothelioma, lung cancer, and asbestosis.  This, he stated, is a great strain on Libby, where unemployment is high and health insurance covers only a portion of the population.  He then described the result of contracting one of these diseases; relatively quick death for mesothelioma, and slow painful death for lung cancer and asbestosis (most common).  He stated that this is a long-term problem, with asbestos-related diseases possibly showing up for decades to come.  Spence and the three other witnesses on Panel 3, who all hail from either Libby or nearby towns, made emotionally moving testimonies on the human tragedy at Libby.

In her testimony, Mrs. Pat Cohan, a nurse from Libby, described the situation in Libby as a "slow motion disaster."  She blamed W.R. Grace for neglecting to tell the miners and residents of possible health problems, and accused the company of caring about profit only.  She was upset that the miners were not treated with respect by W.R. Grace.  She outlined what she believed is needed in Libby; adequate research to characterize the problem, health insurance help for the residents of Libby, and a monitoring facility to track the diseases.

Dr. Brad Black, in his testimony, told of his experiences as a doctor in Libby.  He focused on the health effects of tremolite, saying that it causes higher levels of mesothelioma and lung disease than other forms of asbestos, like chrysotile.  More research is needed he said.  He also noted that W.R. Grace has helped with some of the treatment and insurance costs for Libby residents, but that assistance is beginning to wane.

Mr. John Konzen's testimony focused on trying to keep W.R. Grace financially involved in the medical expenses in Libby.  He, like most of the witnesses, blamed Grace for dodging its responsibility to the miners and residents of Libby and, as an example, pointed to Grace's recent decision to stop financially helping residents who have their own medical plans.  He added that Grace should still be in a position to help, and asked that a trust fund be set up with Grace's assistance.

Question and Answer Session
Sen. Murray, who joined Sen. Baucus on the dais at his request, began the question and answer session by asking Horinko if the EPA intended to clean up the other vermiculite sites under Superfund, as was done with Libby.  Horinko replied that work is just beginning at the other sites, and there is no intention to label them as Superfund.  She explained that the other sites are not as contaminated as Libby, and therefore do not need Superfund designation.  Murray then asked if the EPA is considering adding other asbestos forms to its current list of six.  Horinko said that the EPA was indeed looking into other asbestos forms outside of the six regulated forms.

Murray then asked Wagner if people should be concerned about the other 80-90% non-tremolite mineral dust from the mine.  Wagner answered that this material should be looked at scientifically to determine safety risks.

Sen. Baucus asked Horinko if the EPA has a timeline for cleanup in Libby and if it has the resources necessary.  Horinko responded that the EPA has spent $60 million since 1999, and is asking for $21 million for FY 2003.  She speculated on a two-year timeframe for completing the cleanup of Libby.  She reassured everyone that Libby is high on the EPA's Superfund National Priority List, and therefore has adequate funding.  Konzen agreed that a two year timeline is "desirable."  Baucus then asked Horinko why the insulation cleanup of Libby homes was not declared a Public Health Emergency.  Horinko replied that it was not necessary because a Public Health Emergency designation would not impact the quality of cleanup or resources available.

Sources: Seattle Post Intelligencer, Washington Post, Sacramento Bee, Greenwire, EPA, EEnews, Congressional Research Service, The New York Times, SF Gate, The Billings Gazette, and the Library of Congress.

Please send any comments or requests for information to the AGI Government Affairs Program.

Contributed by Sping 2001 AGI/AAPG Geoscience Policy Intern Mary H. Patterson, Summer 2001 AGI/AIPG Geoscience Policy Intern Caetie Ofiesh, Summer 2002 AGI/AIPG Intern David B. Viator, and Margaret A. Baker, Government Affairs Program.

Last updated December 16, 2002

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