For Polluter, EPA Times Libby Emergency Declaration Perfectly

W.R. Grace promotional products for asbestos-containing Zonolite Attic Insulation. Photo courtesy Anthony Rich.

by Paul Peters

Eight years ago, the Environmental Protection Agency (EPA) tried to do what it finally did on June 17, 2009. That is, declare a public health emergency in the town of Libby, Montana.
In Libby, about 290 people have died and another 2,000 have been sickened due to asbestos exposure from a former W.R. Grace & Co. vermiculite mine just outside of town.
The declaration contains several flaws which you can read about here.
It does not, contrary to most reporting, provide any additional money to Libby. In answers to a host of questions from Asbestos Watch, the EPA stated that money for the cleanup is actually coming out of funds it had already received from W.R. Grace one year ago (EPA answered these questions on the condition that Asbestos Watch would not attribute them to any one official). There is no “new” money going to Libby as a result of this public health emergency declaration.
And it’s more than a little interesting that the declaration comes now, after W.R. Grace, the company responsible for releasing the contaminants that poisoned Libby, has safely cleared the deck of all lawsuits pertaining to its operations in Libby, and has reached a settlement with the federal government that protects the company from future health care and cleanup costs in Libby.
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The eight-year delay in declaring a health emergency, which the EPA was provably pressured into by W.R. Grace and the White House’s Office of Budget Management (OMB), cost several years of health aid to Libby, and will leave the public to pay for any additional costs in Libby, which are estimated at a minimum of $80 million.
Perhaps the best record of how the OMB and Grace torpedoed the EPA’s initial attempt to declare a public health emergency in Libby comes from a September 2008 report by the U.S. Senate Committee on Environment and Public Works, “EPA’s Failure to Declare a Public Health Emergency in Libby, MT.”
This report reconstructs the decision using emails and internal memos between the EPA and the OMB, interviews with EPA staff, and interview records from the EPA Office of the Inspector General’s Office investigation of the decision, which resulted from the Rumple Report, but did not lead to charges.
According to the Senate report, the EPA began internal discussions about the need to declare a public health emergency in early 2001. EPA officials at that time noted that Zonolite attic insulation posed a threat to the health of residents in Libby.
Zonolite was a insulation product manufactured by W.R. Grace from vermiculite mined in Libby. The product is contaminated with Libby amphibole asbestos, and was used as attic insulation in as many as 30 million homes across the U.S., including many in Libby. It was also sold and widely used as a soil additive in yards and gardens.
In the EPA’s internal discussions, officials acknowledged that Superfund law required them to declare a public health emergency in order to move a commercial product from a building or residence.
At first, that was exactly what the EPA set out to do.
According to the Senate report, after then EPA head Christine Todd Whitman visited Libby in September of 2001, she was touched by the suffering she has seen there, and convinced that the emergency declaration was the right thing to do.
By March of 2002, the EPA was on the verge of making the emergency declaration official, to the point that it had begun drafting press releases to make the announcement to the nation.
The final press release was to include this quote from Whitman, “The EPA believes that the conditions in Libby present an imminent and substantial endangerment to public health and the environment. By declaring a public emergency the EPA can take aggressive steps the EPA can protect the citizens of Libby from enduring further exposure to asbestos.”
Internal memos show EPA was set to announce the public health emergency on April 19, 2002. The decision was to be a major affair, and the EPA anticipated full media coverage, much like what happened when it finally did make the declaration last week.
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But on April 9, EPA associate administrator Jessica Furey sent an email to EPA staff requesting them to draft a different rationale for removing the attic insulation, one that did not require a public emergency.
The next day, William M. Corcoran, vice president of Grace, sent a letter to EPA head Whitman opposing the need for a public health emergency and attic cleanups (read more about the letter here).
From there it was downhill. On April 16, top EPA officials, including Furey, met with members of the OMB.
Asked by the Senate panel when the decision to make the public health emergency declaration was reversed, Furey mentions this meeting, saying, “I remember the issue of precedent coming up… there was concern about sort of the slippery slope, if you do it in this case, why this situation and where do you draw the line for the other situations. And will that create public hysteria.”
The apparent fear was that the the rest of the United States, where there were 30 million homes still containing Zonolite, would wonder why a public health emergency was being declared over the insulation in Libby homes, but not in their homes.
The EPA began bending over backwards to accommodate the OMB, which wanted all reference to Zonolite and an emergency health declaration taken off the table. By early May 2002 they had gotten what they wanted. The EPA, despite having specific knowledge to the contrary, declared that the insulation in Libby homes was not a product, but something Grace had left in piles, and residents had put into their attics on their own accord.
The Senate report quotes an email from an unnamed official at EPA’s headquarters to EPA emergency response official Marianne Horinko, who writes, “EPA is in W.R. Grace’s pocket and afraid to declare the PHE (public health emergency).”
After that victory, Grace really hit its stride. On December 14, 2006, a bankruptcy court judge declared that Zonolite posed “No unreasonable risk of harm” to homeowners (click here for more).
The judge in that case ruled that Zonolite posed no more harm than riding a bicycle. This may not have been the judge’s opinion, had a risk analysis been performed on Libby asbestos. By doing a risk analysis early on, the EPA may have come to the same conclusions that scientists outside the EPA eventually did: that Libby amphibole is much more likely to cause cancer in lower doses than other forms of asbestos. According to the Senate report, the effort to study Libby amphibole may have gone forward with the public emergency declaration, which would have mandated more money for studies. As it were, a risk analysis, requested by EPA scientists, was denied money in the 2003 EPA budget.
In March of 2008, W.R. Grace entered into a settlement agreement with Libby and the EPA. Grace paid out $250 million, and is now shielded from paying future costs for medical or cleanup expenses in Libby. The cleanup, according to EPA, could cost at least $330 million.
Then on May 8, 2009, four of Grace’s executives, charged with clean air act violations, and conspiring to hide the dangers of its mine from Libby residents, were found not guilty. On June 16, 2009, the federal government dropped charges against the last Grace defendant, and the next day the Public Health Emergency was declared.
The time, it seemed, was suddenly just perfect to declare an emergency in Libby.
Read more about the circumstances surrounding the initial attempt to declare a Public Health Emergency, and its connections to air pollution post-9/11 Manhattan, here.

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