Look for more analysis of this news from Asbestos Watch in the coming days. In the meantime, jury instructions for the case have been released. Also, click here and here to view documents that suggest, contrary to the opinion of the jury, that U.S. industry has been aware of asbestos risks for some time.

A version of this story appeared in the Missoula Independent on 10/11/2007.

In 1976, W.R. Grace & Co. convinced the Environmental Protection Agency (EPA) to consider products containing less than one percent asbestos as non-asbestos containing products.

What became known as the “Grace rule” allowed the company to continue selling Monokote, a fireproofing spray used in the construction of many U.S. buildings, including the World Trade Center. It also promulgated the asbestos industry assertion that asbestos is dangerous only in high quantities, even as some branches of the EPA declared it unsafe at any level.

But now, according to a story in New Jersey-based newspaper The Times of Trenton, a Government Accountability Office (GAO) report being released later this week will declare the Grace rule is based on an “arbitrary number” and that even low concentrations of asbestos can be harmful.
When EPA first began cleaning up the asbestos left in Libby by W.R. Grace vermiculite mining, it adopted the stance that asbestos was unsafe at any level.

But, when the World Trade Center buildings fell shortly after the Libby cleanup began, the Grace rule was embraced by the EPA as the standard for safe levels of exposure in Manhattan.

W.R. Grace seized on the discrepancy between the Libby and Manhattan cleanups to argue that the one percent rule, if it was good enough in Manhattan, should be good enough in Libby.

Grace’s argument seemed to work. The company sent letters to former EPA Chief Christine Todd Whitman pointing out the discrepancy. And, according Libby resident Gordon Sullivan, who once served as a liaison between the EPA and the town, the cleanup plan there went from the EPA removing all asbestos to “You clean it up.”

The EPA distributed brochures to all mailboxes in Libby telling residents that it was okay to clean up asbestos with a HEPA vacuum cleaner and a wet rag, which is exactly what the agency was telling Manhattan residents to do.

The EPA eventually withdrew the brochures in Libby after citizen complaints, but never backed off the Grace rule in Manhattan.

The GAO report will likely provide ammunition to activists in Manhattan, and other places where Libby asbestos was sent, to demand stringent cleanup standards.

A version of this story appeared in the Missoula Independent on 01/04/2007.

Christmas came early for W.R. Grace & Co. this year when U.S. Bankruptcy Court Judge Judith Fitzgerald issued a Dec. 14 opinion stating that the company’s Zonolite-brand attic insulation, used in as many as 35 million U.S. homes and businesses, poses “No unreasonable risk of harm” to homeowners.

The insulation contains asbestos from Grace’s former Libby vermiculite mine, exposure to which is blamed for more than 200 deaths in Libby.

Both Grace and lawyers for Zonolite claimants agree that Zonolite contains Libby asbestos fibers, and that those fibers can be released when disturbed.

But Grace, according to the opinion, argued that “the fiber release from [Zonolite] must be at levels which pose unreasonable risk of harm to human health.”

In her opinion, Fitzgerald agreed, writing that lawyers for the homeowners asserted “the mere presence of [Zonolite] in attics poses an unreasonable risk of harm” but provided “no evidence to support that contention.”

That could be because the evidence isn’t in yet.

As the Independent and other Montana media have reported in the last year, the actual danger posed by the specific type of asbestos found in Libby, and in Zonolite, has never been determined. Recently, U.S. Sen. Max Baucus and the EPA’s Office of the Inspector General were finally able to pressure the EPA into doing a comprehensive study on the risk posed by Libby asbestos. That study has yet to be completed.

Lawyers involved with the Zonolite case did not return phone calls from the Independent, but Dr. Gerry Henningsen, who worked as an EPA toxicologist for 12 years and currently works as a technical adviser to Libby residents on the EPA cleanup, points out the impact such a study might have had on the case.

“There’s no direct evidence to show how dangerous or harmful [Libby asbestos] is,” he says. “If you don’t have any data, how do you prevail in court? You can’t.”

But information on Libby asbestos is expected to become available within the year, and in the meantime lawyers for the Zonolite claimants have already filed an appeal.