Judge downplays asbestos risk

The Daily Inter Lake

A federal bankruptcy court judge ruled Friday that asbestos found in Zonolite attic insulation once manufactured by W.R Grace and Co. does not pose an "unreasonable risk of harm."

The U.S. Bankruptcy Court for the District of Delaware denied a plaintiff's motion for a partial summary judgment on asbestos claims, arguing that evidence has established that the risk of exposure from Zonolite attic insulation is "less than that of dying in a bicycle accident, by drowning or from food poisoning."

"Claimants failed to provide any epidemiological evidence or any risk assessment," Judge Judith Fitzgerald concluded, though she noted there "is no dispute regarding the fact that Zonolite attic insulation is contaminated with asbestos and can release asbestos fibers when disturbed."

Vermiculite mined near Libby was used in insulation produced for decades by Zonolite Co. Grace bought the company in 1963 and sold Zonolite as a supplemental insulation for unfinished attics in existing homes until 1984.

The asbestos byproduct found in vermiculite has been blamed for widespread death and illness in Libby. Plaintiffs in myriad lawsuits hold Grace responsible for the exposure to asbestos.

Grace filed for Chapter 11 bankruptcy protection in 2001 in the wake of nearly 125,000 pending personal-injury lawsuits.

The bankruptcy filing put an automatic stay on litigation. Plaintiffs can proceed with their claims before the bankruptcy court, but the court ultimately decides how Libby cases stack up against other creditors.

The court will hold a Jan. 22 conference to determine the status of asbestos claims against the company.

TWO KEY federal agencies dealing with Libby asbestos - the Environmental Protection Agency and the Agency for Toxic Substances and Disease Registry - acknowledge that scientific studies have thus far failed to show a relationship between Zonolite and health risks, Fitzgerald's ruling pointed out.

The EPA has advised homeowners for more than two decades that Zonolite insulation poses a minimal risk if it's undisturbed. For that reason, the EPA's Office of Prevention, Pesticides and Toxic Substances has refused to declare a public-health emergency in Libby, the court ruling noted.

"The evidence submitted indicates that outside the attic, when disturbed, the risk of exposure is negligible," Fitzgerald wrote. "In the attic, even on disturbance, fiber levels did not exceed accepted standards employed in the workplace."

BUT the Libby project team leader for the EPA, Paul Peronard, said the bankruptcy court ruling won't affect the cleanup that's being done there. Homes and businesses that contain Zonolite will continue to be assessed and cleaned.

"We feel Zonolite contributes to the risk there and warrants cleanup," he said.

To date, the agency has spent about $150 million on Libby cleanup, including direct cleanup costs, investigative work and the overhead of running the Superfund program there.

A total of 794 homes and businesses have been cleaned, 450 of which had Zonolite that was removed from an attic, Peronard said. Some properties required only outdoor cleanup of yards or gardens.

There are 600 properties left to clean in Libby. In 2007, the EPA will begin investigating which homes to clean in nearby Troy.

Zonolite is "one of many pathways of [asbestos] exposure" and the percentage of properties in the Libby area with Zonolite is higher than anywhere else, Peronard said.

When the EPA conducted an exposure survey there, more than a quarter of the respondents said they have frequent contact with Zonolite in their attics because the space is used for storage. Tradesmen also have a higher rate of exposure, Peronard said.

If attics are sealed well and not disturbed, there isn't a significant risk of asbestos exposure, he said.

"We do see houses, though, where it isn't buttoned up particularly well," Peronard added.

Sen. Max Baucus, D-Mont., who has pushed for assistance for Libby asbestos victims since the contamination came to light in 1999, has engaged policy experts on his staff to study the court ruling.

"They're reviewing it to determine what, if any, the effects the court ruling will have on Libby," Baucus spokesman Barrett Kaiser said.

NEWS OF the ruling in Grace's favor pushed shares of W.R. Grace stock upward Friday, The Associated Press said. Shares rose $1.33, or 7.1 percent, to $19.95 in afternoon trading on the New York Stock Exchange, having hit one-year high of $20.45 earlier in the session. The stock's previous 52-week high was $19.

Features editor Lynnette Hintze may be reached at 758-4421 or by e-mail at lhintze@dailyinterlake.com