W.R. Grace & Co. has agreed to pay up to $140 million to settle a class action lawsuit stemming from the company's sale of Zonolite attic insulation, a vermiculite product that can contain naturally occurring asbestos. This Zonolite insulation was installed in millions of homes throughout the U.S. and Canada and, as a result, hundreds of thousands of lawsuits have been filed against the product, pushing W.R. Grace into bankruptcy protection in 2001.

The asbestos used in the Zonolite attic insulation came from the mines of Libby, Montana, which have been linked to many cases and deaths of mesothelioma and asbestos-related diseases over the years.

W.R. Grace & Co. will pay $30 million to a trust fund for victims of the asbestos exposure with an additional $30 million to be paid after three years. In addition, W.R. Grace & Co. will make up to 10 additional annual payments of $8 million if certain conditions are met.

It has been three years in the making, but a federal judge has finally set a date for the largest environmental criminal trial in US history. 

Jury selection will begin February 19 in the case against WR Grace Co., alleging that the company knowingly endangering the lives of thousands by exposing them to asbestos-tainted ore from a vermiculite mine right outside of Libby, Montana.

Judge Molloy, the federal judge assigned to the case, is eager to move forward with the trial as it has been roughly two years since the last hearing, and the trial is expected to last nearly four months. Over the years, Molloy has ruled on a number of government efforts to hold WR Grace accountable for the asbestos contamination and has already levied huge fines that add up to hundreds of millions of dollars.  

The thirty three lawyers representing WR Grace in the trial will argue that the people of Libby could not have been harmed by the asbestos in the vermiculite ore. Environmental lawyers say that Grace’s legal team will make their argument with the help of industry-paid-for scientists who will conclude that the asbestos in Libby is not dangerous. In their counter argument, the government can point to hundreds of deaths that appear to be directly linked to asbestos-related diseases in Libby.

From the outset, this trial can be deemed unusual. The case was brought to the Federal Grand Jury just as the Bush administration was trying to force Congress to protect industry from civil asbestos claims. According to congressional investigators, the White House told the EPA and OSHA that it wanted to make sure unwarranted attention was not given for issues involving asbestos safety. 

WR Grace, if found guilty, could be fined up to $280 million, and WR Grace’s executives could receive maximum sentences of 55-70 years. The WR Grace executives that are in danger of being sentenced include Henry Eschenbach, who was the health and safety director in WR Grace's industrial chemical group; Jack Wolter, a former WR Grace vice president; Bill McCaig, an early general manager of the mine; Robert Bettacchi, also a WR Grace senior vice president; O. Mario Favorito, former general counsel for the corporation; and Robert Walsh, who was another senior vice president. A seventh official, Alan Stringer, the last general manager of the Libby mine, was also indicted. He died shortly after pleading not guilty.

A month before Stringer’s death, Les Skramstad, a former Libby miner, died of mesothelioma. Not only did the asbestos take Skramstad’s life, his wife and three children were all exposed to the asbestos through the clothing he wore home from work, and now have all been diagnosed with fatal asbestos-related diseases. Skramstad had hoped to survive to see WR Grace and the company’s executives tried in court.

According to a recent report in the American Journal of Industrial Medicine, an epidemic of mesothelioma will hit Libby, Montana in the next 10-20 years.  Dr. Alan Whitehouse, a pulmonologist focusing on asbestos disease treatment in Libby, wrote the report with input from four other doctors, including Dr. Brad Black of the Center for Asbestos Related Disease (CARD Clinic) in Libby.

Whitehouse, who joined the Card Clinic in 2004 to focus exclusively on asbestos victims, said, “The extent of the epidemic of environmental mesothelioma due to exposures based at Libby will probably not peak for another 10 to 20 years. This is a public health problem of considerable magnitude and points to the need for surveillance and early detection of the disease.”

Thus far, a total of 31 cases of malignant mesothelioma have been diagnosed in Libby residents. A significant number of these patients had no direct contact with the mine or mine workers, but merely were members of the community. In one case, a woman had no direct contact with the mine or mine workers, but her work was located 5 miles from the vermiculite mine. She reported that her car was covered in dust everyday. This exposure to asbestos dust eventually led to her mesothelioma diagnosis and subsequent death.

Between the 1940s-1970s, the vermiculite mine in Libby was operating at its highest capacity. Due to the long latency period between exposure to asbestos and a mesothelioma diagnosis, Libby residents are just now starting to be diagnosed with the disease and the numbers are expected to increase. According to Whitehouse, “The number of mesothelioma cases stemming from exposure in Libby likely has been underestimated because it’s been difficult to track the large number of workers who built the Libby dam project from 1966 to 1974. Large numbers of employees at the lumber mill in Libby also frequently were transitory workers.”

Libby is considered to have the highest mesothelioma rate in the United States. More than 200 asbestos deaths have been confirmed in Libby, and the CARD clinic is following about 2,000 additional asbestos cases. “This is the tip of the iceberg,” Whitehouse added. “God knows how many have been exposed. It could be a horrendous epidemic.”

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Awhile back we wrote about the documentary, “Libby, Montana” that aired on PBS. Since then, the documentary has garnered rave reviews for its intimacy, perception, sense of humor and mostly, for the genuine voice it gives the people of Libby. The documentary is now in the running for an Emmy in the “Outstanding Continuing Coverage of a News Story—Long Form” category.

The film, made in 2004 by High Plains Films’ Doug Hawes Davis and Drury Gunn Carr is about the town that was brought to its knees by asbestos poisoning and then embroiled in the battles with W.R. Grace Corporation and the EPA that followed.

For more information on the documentary, click here.

Last Tuesday, large chunks of vermiculite were found in the Riverfront Memorial park of Libby, Montana. How they got there, however, remains a mystery. While checking the area where a pavilion is to be built along the Kootenai River, Mike Cirian, remedial on-sight project manager with the U.S. Environmental Protection Agency, found a 6-inch wide, 50-yard long line of vermiculite. It was found in a high traffic area that follows the length of the parking lot near the boat ramp and pavilion building site. He immediately sent vac trucks to the area for emergency cleanup and informed the City of Libby as well as the Libby Police.

Cirian believes the chunks were too big to come from underground and they didn’t come off any of the contractors’ trucks doing the multi-million Superfund asbestos cleanup. “I’m pretty sure it’s been there less than a couple weeks,” Cirian said. “This isn’t something you miss. These are large flake, silver-dollar-sized chunks of vermiculite.” The vermiculite had been tracked up and down the parking lot by vehicles, creating a 12,000-square-foot of space to be cleaned of potential contamination.

The park, formerly the old Export Plant site, has been cleaned at least three times in the past. One was a removal action performed by W.R. Grace; the second occurred during the building of the boat ramp; and the third was the EPA’s cleanup of the park, digging down as far as 18 inches. “If — and the emphasis is on the word ‘if’ — somebody is purposely dumping contaminated vermiculite, it’s a really serious situation of endangering the public,” said Libby Mayor Tony Berget. “People could potentially kick up and inhale the dust containing the deadly fibers while driving through the parking lot.”

Two years ago, Environmental Restoration’s parking lot received a similar mysterious deposit of vermiculite. However, it was reported that no one intentionally put it there. Cirian hopes that it is the same this time as well. He said he can’t speculate as to how the vermiculite appeared, but hoped it was a costly mistake, not something done intentionally.

Libby police chief Clay Coker said they are opening an investigation into last week’s spill, and could potentially punish an assailant under a felony Criminal Mischief law, which includes vandalism or tampering with property to endanger or interfere with its use, with damages over $1,000.“In the future, if we identify the suspect, we’ll not only prosecute, we’ll hand it off to other appropriate federal agencies that would also prosecute.” At this point there are no known suspects but the law enforcement is on the lookout for any suspicious activity. Coker said, “If we see anyone moving around after hours, and lo and behold they have a bag of vermiculite on the seat, we will stop and identify them.”