Lawyer: Asbestos ruling may cloud public perception

By LYNNETTE HINTZE

The Daily Inter Lake

A federal judge's ruling that claimants failed to show evidence that typical homeowner exposures Zonolite attic insulation pose an "unreasonable risk of harm" could be misunderstood by the public, a Kalispell attorney said Tuesday.

"This ruling doesn't mean it's safe to go to the attic and disturb Zonolite," said Allan McGarvey, a partner in the firm that's handling most of the Montana asbestos cases. "The court is reaching a legal conclusion on a particular issue: the risk of exposures for typical homeowners who rarely and minimally conduct disturbance activity in their attic."

U.S. Bankruptcy Court Judge Judith Fitzgerald last week denied a plaintiff's motion for summary judgment on asbestos claims in a class-action lawsuit against W.R. Grace and Co., saying claimants failed to provide epidemiological evidence or any risk assessment that would deem attic insulation unreasonably harmful.

When Grace filed for Chapter 11 bankruptcy protection in 2001, class actions in various state and federal courts had been filed for property damages against Grace on behalf of homeowners whose properties contained Zonolite attic insulation. Libby was the epicenter for Grace's production of Zonolite for more than two decades, and asbestos-laced vermiculite had been mined there since the 1920s.

Before a decision on whether to require individual proofs of claim or consider a class action, the bankruptcy court decided to address the threshold issue of whether the insulation poses an unreasonable risk of harm, under the assumption that any property-damage claim ultimately arises from the risk of someone getting sick from the contaminated property.

IN THE big picture of litigation for Libby residents who have been sickened by exposure from Grace's former vermiculite mine near Libby, the judge's ruling has little effect, McGarvey said.

"I don't see it has any application at all to Libby claimants who have had extreme exposures, or to anyone diagnosed with asbestos disease," he said. "Nevertheless, I'm disappointed with the ruling. It creates the public impression that if you have the stuff in your attic, it's all right" to disturb it.

Both the claimants and Grace don't dispute that Zonolite attic insulation is contaminated with asbestos and can release asbestos fibers when disturbed. The bankruptcy court also didn't dispute that point.

But McGarvey maintains that the bankruptcy judge should have asked two important questions. First, is there a danger from the insulation disturbance that warrants a warning? And second, does the danger that occurs result in a risk to tradesmen working in attics that would cause a property loss?

"A typical homeowner won't get sick [if the insulation isn't disturbed], but that's not the point. If you go up there [in the attic] and disturb it, you will exceed the occupational standard" for asbestos exposure," he said.

TYPICALLY, lawsuits filed in a bankruptcy court are claims for money, but in this case the homeowners with Zonolite in their attics didn't want money - they wanted to "get the word out so people wouldn't face dangerous exposures," McGarvey said. "It's unusual to have a claim for non-economic relief."

"Part of the problem is that bankruptcy is a claim paradigm, and this is a nonclaim in a claim system," he explained. "They [the claimants] sought a public-warning system that doesn't fit the claim system. The irony is that not only are we not achieving that, this ruling has the potential" of creating a false public perception that there's no danger in coming in contact with Zonolite.

The court ruling noted that no standards exist that are directly applicable to home attics. Occupational Safety and Health Administration standards provide a baseline for assessing risk of harm from exposure to airborne asbestos.

"All tests conducted regarding foreseeable homeowner activities other than removal of Zonolite attic insulation showed virtually no risk, let alone an unreasonable risk," Fitzgerald wrote.

However, the court found that OSHA standards were exceeded during the removal of Zonolite insulation. Whenever workers are removing the Zonolite to expose plumbing, wiring or to remodel, the OSHA standard is exceeded.

Paul Peronard, Libby team project leader for the Environmental Protection Agency, said the EPA will continue to assess and clean up Libby properties with Zonolite insulation.

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

THE EPA and the Agency for Toxic Substances and Disease Registry acknowledge that scientific studies have failed to show a relationship between Zonolite attic insulation and health risks, Fitzgerald said, but she noted that both agencies recommend taking precautions until more is known. They recommend that homeowners leave the insulation undisturbed, and if it needs to be removed, professionals should be hired.

The court ruling quotes Stephen L. Johnson, EPA's assistant administrator for the Office of Prevention, Pesticides and Toxic Substances.

"People who have homes with vermiculite insulation should become informed, not alarmed," Johnson states according to the court document. "If our message of 20-plus years is adhered to, the risk is minimal."

Gayla Benefield of Libby, who has spearheaded efforts to hold Grace accountable for asbestos disease, said Johnson is expected to attend a town meeting in Libby in January.

"I think that he will be educated about Zonolite attic insulation in short order," Benefield said.

"I really don't know the total implication of the whole thing," Benefield said about the federal ruling. "At this point, the judge is simply stating that there isn't the evidence to implicate Zonolite attic insulation in causing disease.

"The oddity is that we recently got the EPA to pull the 'Living with Vermiculite' brochure that was issued the day that Christie Todd Whitman [former EPA administrator] resigned."

EPA investigators recently found that two agency documents - "Living with Vermiculite" and "Asbestos in Your Home" - are inconsistent. In the brochure "Living with Vermiculite," the EPA recommends that homeowners not disturb asbestos because safe levels are unknown. But it further states homeowners would have little risk of exposure if they handle asbestos while cleaning an undefined small release of the contaminant.

"The judge is following those guidelines, but recently, we have finally gotten the attention of those who care that there are no toxicology studies" on Libby asbestos, Benefield said, noting that Sen. Max Baucus, D-Mont., has pushed for the studies.

"We're just going to continue to fight the battle," Benefield said.

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