[Senate Hearing 110-1268]
[From the U.S. Government Publishing Office]
S. Hrg. 110-1268
OVERSIGHT HEARING ON THE EPA'S CLEANUP
OF SUPERFUND SITE IN LIBBY, MONTANA
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HEARING
before the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 25, 2008
__________
Printed for the use of the Committee on Environment and Public Works
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Available via the World Wide Web: http://www.access.gpo.gov/
congress.senate
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio
HILLARY RODHAM CLINTON, New York JOHNNY ISAKSON, Georgia
FRANK R. LAUTENBERG, New Jersey DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland JOHN BARRASSO, Wyoming
BERNARD SANDERS, Vermont LARRY E. CRAIG, Idaho
AMY KLOBUCHAR, Minnesota LAMAR ALEXANDER, Tennessee
SHELDON WHITEHOUSE, Rhode Island CHRISTOPHER S. BOND, Missouri
Bettina Poirier, Majority Staff Director and Chief Counsel
Andrew Wheeler, Minority Staff Director
C O N T E N T S
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Page
SEPTEMBER 25, 2008
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 1
Barrasso, Hon. John, U.S. Senator from the State of Wyoming...... 5
WITNESSES
Nesbitt, Stephen, Assistant Inspector General for Investigations,
U.S. Environmental Protection Agency Office of Inspector
General........................................................ 7
Prepared statement........................................... 9
Black, Brad, Director of the Center for Asbestos Related Disease,
Libby, Montana................................................. 22
Prepared statement........................................... 25
Roose, Marianne, Commissioner, Lincoln County, Montana........... 29
Prepared statement........................................... 31
OVERSIGHT HEARING ON THE EPA'S
CLEANUP OF SUPERFUND SITE IN LIBBY, MONTANA
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THURSDAY, SEPTEMBER 25, 2008
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The full committee met, pursuant to notice, at 10:15 a.m.
in room 406, Dirksen Senate Building, Hon. Max Baucus
presiding.
Present: Senators Baucus and Barrasso.
OPENING STATEMENT OF HON. MAX BAUCUS,
U.S. SENATOR FROM THE STATE OF MONTANA
Senator Baucus. The Committee will come to order. First, I
apologize, everyone, for the delay. There is a lot going on in
our Country in Washington these days, and not to drop names,
but I got a call from Secretary Paulson; he wanted to talk
about the financial crisis. Then he had other people call me
and so forth. So there is a lot going on, so I just apologize
for the delay here.
I would like to begin today's hearing by remembering my
good friend, Les Skramstad, a vermiculite miner from Libby,
Montana. I first met Les in the year 2000 at a home in Libby.
That was shortly after news reports attributed hundreds of
deaths to asbestos exposure from decades of vermiculite mining
by W.R. Grace Company in the town of Libby in the Northwest
corner of my State.
Now, Libby is a small town, it is about 3,000 people. In
fact, it is way tucked up in Northwestern Montana. It is a very
special place in our Country, but it is kind of a little bit
off the beaten path. It is a very special place.
Over coffee and huckleberry pie, I might add, Les Skramstad
watched me closely. He was very vary and after the meeting we
were talking there in the living room of a friend of ours about
all the asbestos-related problems that people have died and
sick because of asbestos in Libby. He came up to me and he said
to me, he said, Senator, a lot of people have come to Libby and
told us they are going to help, then they leave and we never
hear from them again. We spoke longer, Les and I and other
people there in Libby, and that night I told I told Les I would
do all I could, that I wouldn't back down, I wouldn't give up.
Les accepted my offer and then he pointed his finger at me and
said, Senator, I hear you, but I am going to be watching you.
At that instant I said to myself I am going to do
everything I possibly can to help the people of Libby, Montana.
Of all our priorities, this is going to be one of my major
priorities, is to do everything possible to help people in
Libby. Since then, I have been to Libby 20-some times. My
office has been to Libby over 100 times. We have worked on
this, worked on this, and worked on this to make sure the
people of Libby get justice because of what W.R. Grace has done
to the people of Libby, Montana.
After that day, Les and I became friends. I relied on his
counsel, his straightforward take on what was happening in
Libby. I shined a national spotlight on Libby not just for Les,
but for all the residents of Libby; and, for that matter, any
community wronged by greed.
I am sorry to say that Les passed away from asbestos-
related disease in January 2007. But I haven't forgotten his
words. I haven't forgotten Les. I never will. I have a
photograph of Les on my desk, right behind my desk, on the
credenza right behind my desk, to remind me of the promise I
made to Les and the people of Libby.
I have given copies of that photograph to administrators at
EPA. We have had hearings in Libby, Montana. And just to remind
them of all that needs to be done to provide justice for the
people of Libby, I say will you accept a copy of the photograph
and put it on your desk too? Two administrators--not the top
administrators, but assistant administrators--have come to
Libby and said that they would. In fact, I have asked
Administrator Johnson to have a photograph of Les too, and he
also has a photograph.
Today's oversight hearing on EPA's cleanup of Libby is a
reminder to EPA that I am watching and that my colleagues in
the Senate are working. Over the course of the last year,
Chairman Boxer and I have concluded an investigation of EPA's
failure to declare a public health emergency in Libby. We have
detailed our findings in a report that will be released today.
What we have found is a pattern of intervention from OMB,
the White House, and political appointees at EPA that
undermined cleanup efforts at Libby; that delayed necessary
toxicity studies; that prevented a public health emergency
declaration; and ultimately left the people of Libby, people
like my friend Les, exposed to dangerous asbestos with no long-
term medical care.
EPA and OMB have played fast and loose with the facts, and
they have played fast and loose with the law. They have put
saving money over saving lives. They have failed the people of
Libby, and I am outraged.
EPA's own documents show that a public health emergency
exists in Libby. Over 200 people have died; over 1,000 more are
sick. No other Superfund site in the Country has seen this kind
of devastation. In the words of an EPA Region 8 attorney, ``EPA
rarely finds health problems of the magnitude of those found in
Libby. If a precedent is to be set in using this section of the
Superfund statute, that is, to declare a public health
emergency, Libby is an appropriate place to do so.''
EPA Region 8 staff, the folks on the ground, wanted to do
the right thing. In February 2002, Region 8 staff determined
that the only way to fully address the devastating health
effects of asbestos exposure in Libby was to provide a
mechanism for health care and legally remove asbestos-tainted
Zonolite and adding insulation in people's homes. The only way
to do that was to declare a public health emergency. That was
EPA's folks on the ground, that was their determination.
The Superfund statute prohibits, however, EPA from
responding to the release of contaminants from products. They
can respond to releases that are not products under the
statute, but the statute prohibits EPA from responding to
releases of contaminants from products. What are products?
Products are something like Zonolite, that is, the insulation
that is put in homes. That is the product. It is not the raw
material, but it is the product.
The Superfund statute, as I said, prohibits EPA from
responding to the release of contaminants from products which
are part of the structure of and result in exposure within
residential buildings--that is the statute--unless it
constitutes a public health emergency. Or to reState the same
point, if EPA declares a public health emergency, then they can
remove the product, the insulation from attics. But if they
don't declare a public health emergency, they don't have legal
authority to go in and take it out. That is what the law
states.
Our findings show that top level officials at EPA,
including then Administrator Whitman, appear to have approved
of a plan to declare a public health emergency. They were all
ready to do so, including the administrator, to the best of our
knowledge. EPA staff prepared briefing materials for
Administrator Whitman; they drafted press releases announcing
the public health emergency declaration; and Lincoln County
Commissioner Roose, who is here with us today and will testify
later, heard Administrator Whitman herself declare to
Commissioner Roose, that she, Administrator Whitman, would
declare a public health emergency.
That declaration was made at a town meeting in Libby. I
will never forget that meeting; I was there. It was just a room
in the school; it was just packed with people. People were just
so upset and so concerned and wanted justice. They were very
upset with W.R. Grace, but wanted to work their Government to
do the right thing so that they are taken care of in Libby.
Tragically for the people of Libby, the plan to declare a
public health emergency was derailed following a top level
meeting on April 16th of 2002 between EPA, OMB, SEQ, the
Council on Environmental Quality, and the White House.
Concurrent with this meeting, EPA's Office of General Counsel,
at the direction of the Administrator's office, developed a
different theory for allowing EPA to remove some Zonolite attic
insulation, but without declaring a public health emergency.
That is, they knew that the need is so strong, they have got to
get the stuff out of there, but the only way they can do it
under the law was to find some other rationale because the law
would not allow them to do so unless they declared a public
health emergency.
So, anyway, concurrent with this meeting, as I mentioned,
EPA's Office of General Counsel, at the direction of the
Administrator's office, developed a different theory for
allowing EPA to remove some Zonolite attic insulation, but,
again, without declaring a public health emergency. Under this
theory, EPA claimed that insulation in the homes in Libby was
not actually a product, they say, because W.R. Grace had given
away waste vermiculite, which residents put in their attics,
instead of store-bought insulation. That is, EPA has claimed
that, well, people just picked some of the waste that was piled
up and put that in their attic. That is not a product, it is
just the waste. That was their rationale and justification for
proceeding.
However, there was no factual basis for this claim. In
fact, it is completely bogus. An attorney in EPA Region 8
noted, ``There is nothing in our record to indicate that these
giveaways, that is, the waste, were put in people's attics.''
EPA manufactured something out of thin air, but it wasn't true,
wasn't based on fact. Waste was not put in attics.
The political appointees at EPA, however, OMB and the White
House, ignored officials on the ground, ignored the law, and
ignored the health needs of Libby. Had EPA declared a public
health emergency, the residents of Libby would have been
entitled to medical care. That is in the statute. They would
have been provided with basic help, like oxygen, which may
residents need but cannot afford.
The Superfund statute states, ``Said Administrator''--this
is for different agencies, the Agency for Toxic Substances and
Disease Registry--``shall, in the case of public health
emergencies caused by exposure to toxic substances, provide
medical care and testing to exposed individuals or any other
assistance appropriate under the circumstances.'' That is the
law. If a public health emergency is declared, then, again, the
administrator shall provide medical care and testing to exposed
individuals, and any other assistance appropriate under the
circumstances.
The effect of EPA and OMB's decision, however, reaches far
beyond Libby. Zonolite attic insulation produced from Libby
vermiculite is in an estimated 33 million homes in North
America. In fact, I read some statistic that 80 percent of
insulation worldwide comes from Libby, Montana. And this
asbestos is a particularly pernicious form of asbestos; it is
not the usual, but this is a different, more pernicious form of
asbestos which has a longer latency period. The barbs of the
material, when it gets in a person's lungs, creates greater
disease. It is much worse than ordinary asbestos, which is bad
enough.
While EPA has made limited attempts to inform homeowners of
the dangers of Zonolite attic insulation by posting information
on the EPA website, EPA has never put in place a comprehensive
plan to address this threat to millions of families, that is,
all across the Country, how bad this asbestos is. A public
health emergency declaration in Libby could have changed this.
As one EPA scientist stated, ``EPA was going to let people
know, but they were changed. Somebody changed it. They were
changed from their direction. A public health emergency
definitely would have helped.'' This is the EPA scientist.
Again, he said, ``A public health emergency definitely would
have helped, it would have provided media and public attention.
Without a public health emergency, asbestos has not become a
public health issue. That is the politics of asbestos.''
Frankly, I am outraged at the findings of this
investigation. The Government has failed us in Libby. EPA and
OMB's asbestos politics must end. It is too late for my friend,
Les Skramstad, and hundreds of other Libby residents, but EPA
still can do the right thing. A public health emergency is
still needed in Libby to provide the residents with the
adequate health care that they need and they deserve. It is
time for EPA to listen to its own scientists, listen to its own
attorneys, and declare a public health emergency in Libby.
Senator Baucus. I now turn to my colleague, Senator
Barrasso.
OPENING STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM THE STATE OF WYOMING
Senator Barrasso. Thank you very much, Mr. Chairman. Thank
you for holding this hearing and thank you for telling us the
story of Les Skramstad. We should all be concerned about the
situation in Libby, Montana.
I have two very good friends who live in Libby. One grew up
there and then worked for a number of years in Casper, Wyoming.
Nancy Rooney was my operating room nurse for four or 5 years
and her husband Mike, well known, and I actually had operated
on Mike and replaced his knee. I contacted them when I heard
you were having this hearing and they wrote me a nice email. To
read a little bit, it says,--this is from Nancy--``To think I
was out innocently living life in Libby and being exposed to
asbestos every day. So far, Mike and I have tested negative. I
do have one brother with mild asbestosis and dad also has
asbestosis, neither of whom ever worked in the vermiculite
plant. It wasn't our attic at the family home, but it was
cleaned out a few years back.''
So, Mr. Chairman, I have contacted people I know in Libby
and they, as all of us, share the concern that you have
expressed here about what is happening to their community.
According to a report in the American Journal of Industrial
Medicine, Mr. Chairman, that is entitled Environmental Exposure
to Libby Asbestosis and Mesotheliomas, a real epidemic of
asbestos-related mesothelioma will descend upon Libby in the
next 10 or 20 years. And you know mesothelioma is a very rare,
but serious form of cancer. The author of the article is Dr.
Alan Whitehouse. He is quote as saying, ``This is a public
health problem of considerable magnitude and points to the need
for surveillance and early detection of the disease.''
So far, a total of 31 cases of mesothelioma have already
been identified in Libby, and this situation is completely
unacceptable, Mr. Chairman. So I ask for unanimous consent to
enter into the record this important study by Dr. Whitehouse.
Senator Baucus. Without objection. Dr. Whitehouse is very
well known in Libby. He is a big asset and has been very
helpful. Absolutely, without objection, it will be entered in
the record.
[The information follows was not received at time of
print.]
Senator Barrasso. Thank you, Mr. Chairman.
So the people I know in Libby are worried. They are worried
about their future while also facing the legacy of the past.
The main question they ask is how can Libby possibly expect to
attract new people--people to work, people to live in the
community--when they read an article that says they would still
be at risk if a complete cleanup is not done? They believe it
is imperative to continue the funding for the cleanup of Libby
and reduce this ongoing exposure.
Our Country faces a number of environmental problems. One
of the most troublesome is the industrial legacy of the last
century in rural America. There is an obligation to address
environmental problems in these small rural communities that
most Americans have never heard of. So I would like to thank
you, Senator Baucus, and I look forward to addressing this
important issue with you. I am very sympathetic. This is a
serious issue and I am glad that we have the opportunity to
continue to bring this to light.
Senator Baucus. Thank you, Senator, very, very much. I
appreciate your concern. As a physician, I know you have a
special concern and I deeply thank you.
Today we have two panels. I would like to introduce the
first panel. The first witness is Mr. Stephen Nesbitt,
Assistant Inspector General for Investigations at EPA's Office
of Inspector General. Mr. Nesbitt was involved in the criminal
investigation that began in 2006 into EPA's cleanup activities
in Libby.
I might parenthetically State there is a criminal trial
proceeding now in Missoula, Montana with respect to W.R.
Grace's operations at Libby, Montana.
I want to note that the Committee requested two witnesses
from EPA, the lead toxicologist at Region 8 assigned to the
Libby site, and also we requested the on-scene coordinator at
the Libby site. Both have been intimately involved with the
Libby asbestos site. Both recommended EPA declare a public
health emergency. EPA, however, could not make these two
available at this hearing, despite this Committee's request.
This is after EPA refused to make these two Region 8 officials
available to be interviewed pursuant to the Committee's
investigation. So not only will EPA not allow these two key
people attend this hearing, but also would not allow this
Committee to interview them.
I then asked Administrator Johnson to be here. If he is not
going to let two of his key people be here, I asked him to be
here. He has been invited to answer my questions on why EPA did
not listen to its own employees in the region and on the ground
in Libby and continues to refuse to declare a public health
emergency. Regrettably, Administrator Johnson has also refused
to attend today's hearing.
This is most regrettable. This site is very important not
me and the people of Montana, and it is very important that the
public have an opportunity to learn the facts with respect to
Libby, which they could learn based upon the questions I might
ask and answers that Administrator Johnson and others might
give. Everybody is going to tell the truth here, but we just
need to get the facts out. It is very regrettable.
Mr. Nesbitt, I do, however, thank you for coming. By the
way, if you have a longer statement than the allotted 5
minutes, that will be put in the record, but please feel free
to summarize your statement. Thank you. You may proceed.
I might just note for the record we have the sign next to
you as Steve Johnson, who is the Administrator of EPA. He is
still welcome to come and sit there if he wants to come.
Proceed, Mr. Nesbitt.
STATEMENT OF STEPHEN NESBITT, ASSISTANT INSPECTOR GENERAL FOR
INVESTIGATIONS, U.S. ENVIRONMENTAL PROTECTION AGENCY OFFICE OF
INSPECTOR GENERAL
Mr. Nesbitt. Good morning, Mr. Chairman and members of the
Committee. I am Stephen Nesbitt, Assistant Inspector General
for Investigations at the EPA Office of Inspector General. I
have been a criminal investigator for nearly 19 years. I am
pleased to be here today to discuss the OIG's investigation of
the EPA's cleanup activities in Libby, Montana.
Over a 2-year period, we invested over 12,500 man-hours;
conducted over 400 interviews; and collected and reviewed over
1.5 million documents. At this Committee's request, we have
also turned over a significant amount of our investigative
material, Libby case material, to assist you in your oversight
work.
The OIG initiated an investigation in March 2006 in
response to a misconduct allegation raised by a former EPA
toxicologist against a contractor working in Libby. We
determined this allegation did not merit prosecution, but
during the course of our investigation witnesses and EPA
employees raised other allegations regarding EPA's cleanup
actions in Libby that we believed warranted our attention. I
will focus on two of these allegations.
The first allegation is that EPA has proceeded to clean up
Zonolite attic insulation contained in the attics and walls
within homes in Libby under an emergency response removal
action that is questionable under CERCLA, which is also known
as Superfund. EPA's On-Scene Coordinator believed that this
insulation had to be removed from the homes in Libby because it
could recontaminate the area if left in the attics and walls
and somehow became airborne. However, CERCLA specifically
prohibits the use of Superfund money to clean up products
unless a public health emergency is declared. In a draft action
memorandum from November 2001, the On-Scene Coordinator
proposed that a public health emergency be declared and that
authorization be granted to remove insulation in 800 Libby
homes.
Over the next several months, this draft memorandum was
reviewed and revised by numerous officials within both Region 8
and EPA's Office of Solid Waste and Emergency Response. Emails
show that officials mostly supported a public health
declaration until February 2002, when OMB staff raised
questions and began to express doubts that such a declaration
was necessary. EPA's Office of Prevention, Pesticides, and
Toxic Substances voiced concerns as well over the removal of
insulation.
In April 2002, OMB staff commented on the draft action
memorandum. There was also communication about this issue
between the Council on Environmental Quality and EPA officials
on the proposed public health emergency declaration. Three
legal alternatives to declaring a public health emergency were
provided by EPA's Office of General Counsel. In May 2002, a new
draft action memorandum was circulated for review within EPA
headquarters that removed all references to a public health
emergency declaration and to the commercial name Zonolite.
Despite Region 8's recommendations, EPA headquarters determined
that Region 8 should proceed to clean up the Zonolite asbestos
in Libby homes without declaring a public health emergency. An
EPA attorney opined that if the insulation was viewed as a non-
product, then it would be legal to use CERCLA funds for the
cleanup in Libby.
The final action memorandum was signed on May 9, 2002, by
then Assistant Administrator for OSWER Marianne Horinko as the
approving official. It allowed for the cleanup of homes and
yards at a cost of $54 million without declaring a public
health emergency.
The second allegation brought to us by a witnesses was that
EPA was making remediation decisions without adequate science
because a baseline risk assessment, which is required under the
National Contingency Plan was not done, possibly placing Libby
residents at risk.
In September 2002, the remediation project manager for
Libby requested funds to conduct both the remediation and risk
assessment. Specifically, the RPM requested a total of $21
million--$17 million of which would go to clean up activities
and $4 million for a risk assessment. However, EPA headquarters
proposed only $17 million for the cleanup activities and no
funding a risk assessment. At that funding level, the RPM was
forced to stop all additional risk assessment work.
In December 2006, the OIG issued a report based on a
request from Senators Baucus and Burns that looked at EPA's
cleanup efforts in Libby. After our report was issued, EPA
officials began to move forward with the planning and funding
of a baseline risk assessment.
The OIG briefed attorneys from the Department of Justice's
Public Integrity Section on all aspects of our investigation
between August 2007 and May 2008. In a letter dated June 6,
2008, the chief of DOJ's Public Integrity Section notified the
OIG of its determination that the initiation of criminal
proceedings in this matter was not warranted and therefore
declined prosecution.
I thank you for the opportunity to testify before you
today, and I would be pleased to answer any questions that the
Committee may have.
[The prepared statement of Mr. Nesbitt follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Baucus. Thank you, Mr. Nesbitt. Just a series of
questions here. You recommended the IG's office expand the
scope of the investigation to address EPA's decision not to
declare a public health emergency. Why did you make that
decision? Why did you recommend expansion from the original
allegations back to watering down?
Mr. Nesbitt. When the original allegation came in, we
reviewed that allegation in 2006. Through the interviews that
were done with the individuals at Libby, as well as Region 8
employees, other allegations surfaced that dealt with the
issues I brought forward as far as the expense of CERCLA funds
and the failure to declare a PHE.
Senator Baucus. PHE is public health emergency?
Mr. Nesbitt. Public health emergency, correct. And then the
baseline risk assessment. So, at that point in time, when we
reviewed those issues and those complaints, we weren't quite
sure exactly where they fit into a criminal case, but we
understood that there was something not being done that we
needed to look into further, and that is what expanded our
scope.
Senator Baucus. So how do you suppose the Region 8 staff
and also the Region 8 headquarters reached the conclusion that
a public health emergency was needed? What do you think their
basis was?
Mr. Nesbitt. I am trying to answer your question in a way.
I can't really speak to what Region 8's staff thought; I think,
more appropriately, they need to answer that question. In our
investigation, all we can determine is that, for the public
health emergency, CERCLA requires a public health emergency to
be able to clean out a product out of the homes. The material
that was in the attics of the homes in Libby was Zonolite attic
insulation, which was a product.
Senator Baucus. Right. But do you believe that their
determination, that is, Region 8's determination that there was
a public health emergency was justified based upon your
investigation? I am not saying whether it--was it justified? Is
there a basis in fact in reaching that conclusion?
Mr. Nesbitt. I believe, without being an attorney and
without making legal determinations, because that is not my
role, our investigation did find that, through the course of
interviews, document reviews, and speaking to On-Scene
Coordinators and individuals who were present, that there was
product material in the homes that was being removed by EPA
cleanup efforts and that there were issues that the allegation
stated that product can't be cleaned up under CERCLA. As to who
would actually move forward to say that requires a PHE, it is
not really my professional wherewithal to make that
determination. That certainly was what we were moving to in our
case to present to DOJ.
Senator Baucus. Right. Now, did your lead investigator,
Sean Earle, believe that Region 8 was justified in determining
that it would be proper to declare a public health emergency?
Mr. Nesbitt. I can't speak for Sean Earle, my lead
investigator, as to what his opinion was. I know, through the
course of our investigation, that is why we continued and spent
the time and energy in our investigation to continue to follow
through with it. The facts allowed us to move forward and say
that we believe that there was sufficient information there
that we needed to be able to present that to the proper
authorities.
Senator Baucus. Your lead investigator, Sean Earle, did
tell our staff that. Would you have any reason to dispute that
or disagree?
Mr. Nesbitt. I would not have a reason to dispute that. I
just don't want to speak for him.
Senator Baucus. I appreciate that. Now, did EPA
headquarters agree with Region 8's recommendation?
Mr. Nesbitt. Initially, Region 8 agreed with headquarters
in the assessment of the PHE. We saw communications,
discussions, draft memorandum where that was the case. There
was documentation that was produced to discuss that, press
releases, draft press releases, things of that nature, where
that was agreed upon, so that held true until later in the year
and I had my testimony----
Senator Baucus. Right. Before I get there, I am trying to
do this sequentially, in order here.
Mr. Nesbitt. OK.
Senator Baucus. I would like to show the Committee this
document. This is an email dated April 9th, 2002, and it is
from Bonnie Piper, who was employed at the EPA headquarters,
and it states, in the email--you can't read it, but I will just
tell you what it says. It says, ``I believe CTW''--and CTW is
Christy Todd Whitman--``wants this PHE''--that is public health
emergency--``announced within 10 days.'' That is the portion
that is highlighted yellow. She sent this email, that is,
Bonnie Piper did, to a lady named Jessica Fury, who is
Administrator Whitman's special counsel.
So I am just wondering, based upon what you know and based
upon this email, is it your opinion that Administrator Whitman
was prepared to announce a public health emergency, at least at
that time?
Mr. Nesbitt. I believe there is indication to believe that
there were communications to Ms. Whitman that the PHE was going
to be declared and that there was documentation, at least in
draft format, initially to move forward on the PHE.
Senator Baucus. OK. Well, my time has expired. I have got a
lot more questions. I will let Senator Barrasso proceed.
Senator Barrasso. Thank you very much.
Senator Baucus. We have a 5-minute rule here for each
Senator.
Senator Barrasso. I just have a couple quick questions, Mr.
Chairman, then we will get back to you for additional
questions.
Two questions, Mr. Nesbitt. One is I think you stated in
the testimony that EPA didn't seek to recover some of the
cleanup costs in their settlement with W.R. Grace. Can you tell
us a little bit about why that would have been or elaborate a
little bit more on that?
Mr. Nesbitt. I can't give you the motivation for why they
did or didn't do it specifically. We know that in the process
of doing the cleanup and not declaring the public health
emergency and expending the $54 million, that there was no
opportunity to recoup that money from W.R. Grace, which-I am
not a lawyer and not an expert in that area-may have been
possible if it had been declared a public health emergency.
Senator Barrasso. And another. I think you stated in the
testimony the EPA presented some inconsistent conditions on
safety issues in the two public information documents. Could
you tell us a little bit more about that? Was this human error
or was something else involved, do you think?
Mr. Nesbitt. Are you referring to the comfort letters?
Senator Barrasso. In your testimony, page 4, it says,
``Also, EPA presented inconsistent positions on safety issues
in two public information documents.'' It starts, I think, on
line 4 on page 4 of your testimony. I was just curious what you
meant by that.
Mr. Nesbitt. My understanding is that it is dealing with
the letters that they distributed to the public in Libby
dealing with the safety of the cleanup efforts in the homes
which were cleaned up.
Senator Barrasso. And you think that was human error or was
there something else involved in that? I mean, it is disturbing
to hear that.
Mr. Nesbitt. I personally do not believe it was human
error, but I can't tell you what was in the minds of the
individuals that wrote it. I can just lay down the facts that
the information that was provided for the cleanup, based on the
fact that a risk assessment was not done, homes were cleaned
up. The level of cleanup has no baseline on which to say it was
cleaned up to. I don't know how we can make a determination
that the cleanup was done to a safe level.
Senator Barrasso. Thank you.
Thank you, Mr. Chairman.
Senator Baucus. Thank you, Senator.
Mr. Nesbitt, up to this point we have pretty well
established that the EPA personnel on the ground, Region 8
headquarters, and also EPA headquarters in Washington, DC. were
all prepared to declare a public health emergency; that is, the
recommendation was made in the field, the Region 8 office
agreed, and all indications are that Administrator Whitman and
EPA headquarters were all prepared to declare a public health
emergency.
I would now like to turn to what happened afterwards, and
this is the sudden, abrupt change at EPA. Your investigators,
as I understand it, believed that OMB told EPA it could not
declare a public health emergency; that is, your lead
investigator told my staff that. Is that correct?
Mr. Nesbitt. There was communication between OMB and the
agency which adjusted the language and told them they could not
or should not put the PHE declaration language in the
documentation. I don't know the granularity--the agency would
know as to what was actually said.
Senator Baucus. What do you suppose OMB's concerns were?
What were their concerns, do you think?
Mr. Nesbitt. From the OMB's perspective?
Senator Baucus. Yes.
Mr. Nesbitt. I don't have the specific knowledge of OMB's
motive and intent. Our investigation's desire was to uncover
the motivation and intent on why these issues were done with
the declaration. We never proceeded to the point where we
actually got to the----
Senator Baucus. Could it have been, possibly, the
precedent, it would be the first time?
Mr. Nesbitt. They did mention, if I remember correctly, in
some of the correspondence that this would have been the first
time a PHE was ever declared. I do recollect that. There was
also concerns with economics or money, as well, I believe.
Senator Baucus. Could you expand on that a little bit, the
economics and the money part?
Mr. Nesbitt. If I understand correctly--and, again, I am a
high level official; I haven't seen every document that the
case agents have seen--but in the process of the PHE, the PHE
declaration for Libby, Montana, Libby is a small area,
isolated. If that public health emergency were declared for
Zonolite attic insulation in the cleanup in the attic
insulation, that Zonolite attic insulation wasn't contained
only to Libby, as you stated, it is in different areas. So it
is a possibility----
Senator Baucus. When you say different areas----
Mr. Nesbitt. Different areas of the Country.
Senator Baucus. Like how many different areas?
Mr. Nesbitt. We had a different range of numbers. The
estimates that we had were between 15 and 52 million homes in
America.
Senator Baucus. Fifteen to 52 million homes in America?
Mr. Nesbitt. Correct.
Senator Baucus. So that is significant.
Mr. Nesbitt. Significant.
Senator Baucus. So perhaps one of the reasons OMB did not
want to declare a public health emergency is they didn't want
to address Zonolite problems in 15 to 52 million homes.
Mr. Nesbitt. That was the question that needed to be
answered.
Senator Baucus. There is also a medical component to this,
isn't there? What is that?
Mr. Nesbitt. I am not an expert on the medical aspect, but
my understanding is once a public health emergency is declared,
then the individuals that would be exposed are eligible. That
through a public health emergency they could receive medical
care.
Senator Baucus. Right. In fact, the CERCLA statute so
states, that the Administrator would--I will go back in my
notes, maybe we can find it here. Here it is. Quoting the
Superfund statute, ``Said Administrator, in the case of a
public health emergency caused by exposure to toxic substances,
will provide medical care and testing to exposed individuals,
or any other assistance appropriate under the circumstances.''
So the exposure to, frankly, the U.S. Government if a
public health emergency were declared, would be not just a
cleanup of Zonolite in Libby homes and also the medical care
for people in Libby, but also to perhaps clean Zonolite in a
lot of other homes around the Country, say 30 million, roughly,
plus medical care for people in other parts of the Country. So
that, most likely, is the reason OMB said no to EPA and a
declaration of public health emergency, even though the facts
supported it. Does that make sense to you?
Mr. Nesbitt. That is certainly a possibility that we wanted
to pursue.
Senator Baucus. A former Associate Administrator, Marianne
Horinko, and the person who signed the action memo to proceed,
has told the press that OMB was not involved. Your
investigation uncovered facts that refute this assertion, isn't
that correct?
Mr. Nesbitt. That is correct.
Senator Baucus. I would like now to show another document
here. This is another email. In fact, this is an email that we
requested of EPA. They would not give it to us. Just as we
requested Administrator Johnson to appear, he is not here; we
requested a key person on the front in Libby, Montana to
appear, EPA said no, he could not appear; requested the lead
toxicologist I think at Region 8 to appear, EPA said no, he
can't appear; and EPA also said no, they would not provide this
email. So how did we get this email? They did say we could go
over and look at it, so this is a reconstruction of that email
based upon my staff just looking at it, although EPA would not
provide it.
This e-mail states--and, again, the key portion is
highlighted in yellow here--and, if I might say, this is from
Marcus Peacock, who is an official at OMB, to Elizabeth Stolt,
and she is at the Council of Economic Quality. The email
states, ``Both OMB, OGC''--that is general counsel at EPA--
``and Nancy Doran have put a hold on this.''
Would you classify this as an involvement by OMB if you saw
this? Have you seen this email?
Mr. Nesbitt. I have not, Senator.
Senator Baucus. I am surprised you haven't seen it. By
looking at this email, would this constitute involvement by
OMB, in your judgment?
Mr. Nesbitt. I would certainly believe that if the email,
as read, were there, in my opinion, I would continue to look at
that as potential involvement, yes.
Senator Baucus. Let me just indicate who is copied on this
email. These are heavy hitters. Do you know who Nancy Doran is,
by chance? She is copied on this email. I think she is--oh, she
is noted in the text, that is, ``Both OMB, OGC, and Nancy Doran
have put a hold on this.'' Do you know who Nancy Doran is?
Mr. Nesbitt. I do not.
Senator Baucus. Well, she was second in charge at OMB at
that time. She is a pretty high level official.
Let's go through some of these other names. Do you now who
James Connaughton is?
Mr. Nesbitt. I remember hearing the name, but I could not
put----
Senator Baucus. Well, he is Chairman of the Council on
Environmental Quality. And the Chairman of Environmental
Quality is the President's right-hand man on the environment.
Next, does the name Jay Lefkowitz ring a bell to you?
Mr. Nesbitt. No, sir.
Senator Baucus. Well, he is the Deputy Director of the
White House Domestic Policy Council.
Karen Knudsen, she is on the list here. Does that name ring
a bell?
Mr. Nesbitt. I have heard the name, sir.
Senator Baucus. She is the Vice President's Deputy
Assistant for Domestic Policy.
I mentioned Marcus Peacock. For the record, do you know who
he is?
Mr. Nesbitt. Yes, sir.
Senator Baucus. He, then, was Associate Administrator for
OMB. Do you know his position now?
Mr. Nesbitt. He is Deputy Administrator for EPA.
Senator Baucus. Now he is at EPA, that is correct.
There are a lot of others in there, but these are heavy
hitters, no one is low level staff. These clearly are high
level staff people. So this clearly indicates OMB's involvement
to put the kibosh on and to stop EPA's imminent declaration of
public health emergency.
Now let's turn to another portion here, and that is what
did EPA do after that and why did they do it? Now, EPA decided
that, gee, maybe they better go in and clean out some of the
Zonolite in these attics, but there is no legal authority to do
so unless they declare it a public health emergency. They did
not want to declare a public health emergency, it is clear,
because they did not want to set the precedent in the first
place and, second, the consequences that would flow to other
parts of the Country, that is, medical costs as well as clean-
up costs.
So what did EPA do? How did they go about cleaning the
Zonolite out of these attics in Libby, Montana if there was no
legal authority to do so? So what did they do? Do you recall
what legal theory EPA came up with to justify taking some of
the Zonolite out of the attics without declaring a public
health emergency?
Mr. Nesbitt. From my recollection, the discussion was to
identify the material in the attics as being ``non-product.''
As I said in my statement, an EPA attorney opined that if we
called it ``non-product,'' then CERCLA wouldn't kick in and it
could be cleaned up.
Senator Baucus. And is Zonolite a product, do you think?
Mr. Nesbitt. Zonolite, by definition, Zonolite attic
insulation is product.
Senator Baucus. And that is what was put in people's homes?
Mr. Nesbitt. Correct.
Senator Baucus. And that is a product. And the only way
they could get authority to clean out a product is to declare a
public health emergency under the law, is that correct?
Mr. Nesbitt. That is my understanding.
Senator Baucus. Right. So they had to figure out some other
way to avoid declaring a public health emergency.
I have a picture here. This is a picture of Zonolite attic
insulation. That is the picture on the top. Below that is a
picture of waste vermiculite that is mined in Libby, Montana.
Could you tell us what is the difference between these two
materials?
Mr. Nesbitt. The Zonolite attic insulation can only act in
an insulating capacity after it has been heated 600-700
degrees, which is called ``popped.'' When popped, it then takes
on a less dense, more of an insulating capability; whereas, the
raw vermiculite is more of a soil and does not have that
insulation capability. So the top product would be the
insulation; the bottom would be the raw vermiculite.
Senator Baucus. Right. Now, it is a little bit confusing
when you look at this photograph because they look somewhat
alike. To the casual observer, some might ask, well, gee, what
is the difference here? But you are right, the top photo is
spongy, it has been popped, it has been heated. It may look
hard or may look soft, but it is actually soft. It is a spongy
substance, and that is the Zonolite that is put into attics.
The bottom photo is just raw vermiculite. It is rock, it is not
spongy. It not material good for insulation, it is rock-like.
Now, EPA claimed that people put rocks in their attic. Now,
did your investigators determine that there was just no basis
in fact for the EPA headquarters' claim that people put waste
vermiculite in their attics for insulation?
Mr. Nesbitt. That is correct. At the time of the signed
memorandum saying that it could be cleaned up according to the
testimony we received, there was no indication that there was
any raw vermiculite in the attics in the cleanup.
Senator Baucus. In fact, did the Region 8 officials in
Libby who saw the insulation in people's attics object to the
headquarters' claim that the insulation was waste vermiculite?
Mr. Nesbitt. Yes, they did.
Senator Baucus. So the Region 8 officials objected, they
said, no, that is not right, that is not waste material in the
attic. You headquarters may claim that. I don't think you
headquarters have been to Libby, but we have been to Libby and
say uh-uh, that is not true.
Was Region 8's objection that attic insulation was not
waste vermiculite conveyed to headquarters?
Mr. Nesbitt. It is my belief that it was.
Senator Baucus. Can you tell me a little bit about that? Do
you know how it was conveyed? How was it conveyed to
headquarters?
Mr. Nesbitt. I can't give you specifics.
Senator Baucus. Do you think they told Associate
Administrator Marianne Horinko?
Mr. Nesbitt. I believe the information was conveyed. I
don't know the exact means of transmission, but the information
was conveyed back contesting the fact that there was not a non-
product in the attics.
Senator Baucus. OK. I would like to show you another
document here. This is an email from Marianne Horinko to John
Spinello. It states--and the relevant portions there are
highlighted--``We have no direct evidence that homes contain
waste vermiculite. I am not comfortable signing anything so
definitive.'' Does that comport or conform with your
understanding?
Mr. Nesbitt. Yes.
Senator Baucus. So even though Horinko signed the action
memo claiming that this is waste, that seems to be a false
justification. Would that be your conclusion?
Mr. Nesbitt. Senator, I don't want to make a conclusion. I
would say that, in our investigation, that was part of the
investigative process that we were presenting to the Department
of Justice in regard to the misuse of CERCLA funds.
Senator Baucus. OK. So just to summarize--I don't want to
put words in your mouth--No. 1, the people on the ground
working for EPA in Libby, and also Region 8 folks in Libby, and
even the headquarters office in Washington, DC. was prepared to
declare a public health emergency. That seems to be the case,
is that correct?
Mr. Nesbitt. Yes.
Senator Baucus. Second, it seems, based upon the evidence
here, that once EPA communicated that to OMB, OMB stepped in
and other White House Administration officials stepped in and
apparently got involved with this and, as a consequence, EPA
decided not to declare a public health emergency.
Mr. Nesbitt. That is correct.
Senator Baucus. And, further, the justification that EPA
used to take the Zonolite out of the attic, that is, it was
waste material, not product, seems also to be false.
Mr. Nesbitt. All the indications from our investigation
could not substantiate that there was non-product in the
attics.
Senator Baucus. And if EPA had declared a public health
emergency--and, based upon the facts and recommendations of
everyone involved, that should be the case--the consequence
would be cleaning up the attics, the Zonolite product in the
attics, and also would mean medical care for people in Libby.
But, also, the same consequence would apply to other parts of
our Country where Zonolite was found in attics and people were
harmed by asbestos.
Mr. Nesbitt. Certainly, the first part, the Libby residents
and the Libby homes, I understand. Whether they would actually
have to declare the public health emergency around the Country,
I am not positive that would be the case. I know that through
the investigation and through the course, once we saw there was
discussion of trying to isolate and maintain Libby as something
unique due to multiple pathway exposure versus single pathway
exposure. I am not a toxicologist, I am not in a position to
evaluate that, but, again, without having the proper toxicology
studies done, understanding whether multi versus single pathway
exposure was the deciding factor put us at a disadvantage.
So, to answer your question, it certainly is a possibility,
but I can't say definitively that the PHE, public health
emergency, would have been required everywhere else.
Senator Baucus. Let me turn to another subject, and that is
the failure of EPA to conduct a toxicity study. Why do you
suppose EPA did not conduct an earlier toxicity study, a
baseline assessment? Why?
Mr. Nesbitt. I believe there were multiple reasons why the
toxicity study wasn't done, based on our investigation. We see,
and in my statement you see, that there was money requested,
funding requested, $4 million for the toxicity study, which was
not provided. We do not know why headquarters did not fund that
money. There was a lot of concern and desire from the community
to have their homes cleaned. From my understanding and from the
interviews that were done and statements that were made, the
assessment made by the RPM on the scene was do you want your
homes clean or do you want a risk assessment? We want to get
the homes cleaned as fast as possible. We do not know if there
was another motive beyond that.
Senator Baucus. Why is a toxicity study important?
Mr. Nesbitt. Again, as a layman, to start a cleanup, it is
required under the NCP, first off. The National Contingency
Plan requires for an NPL-listed, national priority-listed,
Superfund site that a toxicity or baseline risk assessment be
accomplished. As a layman,--and again, I am not an expert to be
able to present that, but there has to be a basis to understand
what the threat is, and removal is fine, but if you don't know
what to remove, you don't know what is left.
Senator Baucus. So really the question is how clean is
clean?
Mr. Nesbitt. Correct.
Senator Baucus. You have to know what standard to clean up
to.
Mr. Nesbitt. That came up in many of the discussions when
the investigators were in the field.
Senator Baucus. And the thought is to know how much to
clean up, the standard to clean up to, you have to know what
the toxicity levels are in the first place.
Mr. Nesbitt. Correct.
Senator Baucus. So, again, why do you suppose EPA did not
want to initially do that study? I will ask that question
first. Why, originally, do you suppose, EPA did not want to
conduct that study, or did not?
Mr. Nesbitt. We did not uncover the motive specifically on
why EPA did not do the baseline risk assessment. That portion
of the investigation was being--we basically followed a
geographical path from Libby to Region 8, originally Denver,
and from Denver we did our investigation, then literally moved
our teams to EPA headquarters. At the point in time, from the
information we gleaned from headquarters, we had not yet
ascertained the motivation for that and, in the process of our
investigation, we received the declination and so we weren't
able to complete the high level interviews that we desired to
do.
Senator Baucus. Now, Senator Burns and I asked the
Inspector General's Office to look into this, as I recall, and,
as a consequence, I think--I don't want to put words in your
mouth--my recollection is the IG's office concluded that a
toxicity study should be conducted. Is that correct?
Mr. Nesbitt. Correct. There was another element of our
organization, our Public Liaison unit, who did the report, and
they put out a quick action report that is on the public
website that recommended or stated that there should be a
baseline risk assessment done, toxicity study done.
Senator Baucus. And, as a consequence of the Inspector
General's recommendation, what happened next?
Mr. Nesbitt. As I stated in my oral testimony, they started
moving forward to implement the baseline risk assessment.
Senator Baucus. Right. That is correct, and I appreciate
that. In fact, that was something that was very important to me
personally at the time. Matter of fact, I was quite disturbed
that after talking to people in Libby, that EPA had not begun
this study, and my thought was, my gosh, if we are going to do
right by the people in Libby, we have to clean up to the right
standards, and we didn't know what standards to clean up to,
and the only way we can find out is to do this study. So we
really put the bee on EPA to do what they should be doing and
do the study, and with your help, at least the IG's help, we
got it done, and I deeply appreciate that.
Thank you very much, Mr. Nesbitt, for your testimony here.
You have been very helpful and I thank you for all your work
and the service you perform for our Country. I know you are
trying to do the right thing, and I deeply appreciate that.
Mr. Nesbitt. Thank you, sir.
Senator Baucus. Thank you.
OK, now the next panel. I would like to introduce our next
panel. Dr. Brad Black. Dr. Black has been the Medical Director
for the Center for Asbestos-Related Disease, known as the CARD
Clinic, Libby, Montana. He has been there since its inception
in the year 2000. He is also a practicing physician in the
Libby community since 1977. We look forward very much to your
testimony, Dr. Black. Thank you for being here.
We will also hear from Marianne Roose. She is one of the
Lincoln County commissioners. In fact, she was chairman for a
good number of years. She has been a member of the Commission
for 12 years and also serves on the Board of Directors for the
CARD Clinic and has firsthand knowledge of the experiences in
Libby, Montana.
Thank you both for coming very, very much. Libby is a long
way away from Washington, DC. Thank you, both of you, again.
Why don't you proceed with your testimony?
Dr. Black, why don't you proceed?
STATEMENT OF DR. BRAD BLACK, DIRECTOR OF THE CENTER FOR
ASBESTOS RELATED DISEASE, LIBBY, MONTANA
Dr. Black. Good morning, Senator Baucus and members of the
Committee. This opportunity to speak on behalf of a highly
asbestos impacted population is important to them and to
millions of others in North America who are at risk for serious
illness, so I do thank you for this invitation.
First, my name is Brad Black. I have been practicing
medicine in the community of Libby, Lincoln County, Montana
since 1977. Since July 2000, I have been entrusted with the
role of Medical Director for Libby Center for Asbestos Related
Disease, also known as the CARD. The CARD is a non-profit,
community-directed clinic that was created to address the
special health care needs relating to the extensive public
health problems caused by W.R. Grace's mining of asbestos-
contaminated vermiculite until mining closure in 1990. I also
serve as Lincoln County health officer.
I would first like to address the observed health impacts
caused by the exposure to the Libby amphibole asbestos.
Looking back to the year 2000, the Agency for Toxic
Substance and Disease Registry completed a mortality study
reporting that the asbestosis mortality rate was 40 to 60 times
higher than expected in Lincoln County, Montana, ranking it in
the top 10 counties in the U.S. for this statistic. An updated
mortality study was recently posted in June of this year on the
National Center for Health Statistics CDC site, which included
the years 1995 to 2004. Lincoln County, Montana had the highest
age-adjusted rate of asbestosis mortality among all U.S.
counties.
The mesothelioma rate is very high for this small
population exposed to Libby asbestos. I assisted Dr. Alan
Whitehouse as a co-author on an article published in the
American Journal of Industrial Medicine in 2008 where we
describe 31 cases of mesothelioma, with 11 of these being
caused by non-occupational exposure. The CARD Clinic now
follows 2400 patients, currently gaining approximately 20 new
patients per month. Asbestos-caused health complications and
disease progression continues to be unusually common in this
population. The majority of patients are ill from non-
occupational exposure.
I would like to next address the current asbestos health
care resources. But let's paint the picture of Lincoln County
first.
In 2001, the Department of Health and Human Services
designated Lincoln County as a frontier county and as a
medically under-served population. In 2000, W.R. Grace publicly
committed to offer a voluntary medical plan to those affected
and the company indicated they would take full responsibility
to ensure coverage for all adverse health effects from Libby
asbestos exposure. They hired Health Network of America as
insurance administrator, who routinely denies coverage for
asbestos-related services.
There is also the Libby Asbestos Medical Plan (LAMP), which
has extremely limited funding and is more quickly depleting as
the W.R. Grace plan coverage has declined. This fund is managed
by a community-appointed board, providing asbestos health
screening benefits, as well as supplemental coverage when the
W.R. Grace plan denies for care. The W.R. Grace plan has
demonstrated continually declining reimbursement for services
required by major asbestos-related problems, such as
supplemental oxygen, chest surgery for asbestos-caused disease.
Let me tell you about a special gentleman whom I will
identify as Walter. He has advancing asbestosis and came to the
CARD Clinic extremely short of breath. He had developed a very
large asbestos-related plural effusion--that is, fluid on the
lungs--and needed surgical intervention. He was referred to a
chest surgeon who cares for many Libby asbestos cases. After
his procedure, he was much improved, but came to the CARD
Clinic confused by his bills and why W.R. Grace would not pay
for any of his care. He had attended 12 medical facilities in
his treatment. Asbestos disease was documented in photographs
during surgery and the letter from the surgeon actually
indicated this is just another point farther down the line in
the progression of his asbestos plural disease.
The W.R. Grace plan denied coverage for all related health
care for this problem. The LAMP program picked up $25,000 of
that. That is the cap amount that they will cover. This left
this gentleman with no further coverage to finish off paying
this medical bill, and then he had no future coverage for some
of the medication he was receiving.
Let's go on to the anticipated future health care needs.
The likelihood is strong that current coverage for asbestos-
related health care will be non-existent as we move through
2009. The current health plans in place leave large gaps in
appropriate care for a population that has been burdened by
such an unnecessary and avoidable disease. Access to outpatient
asbestos-related services, which have primarily been provided
in Libby by the CARD, in collaboration with other health care
providers, will need to be funded for the long term, perhaps 30
to 40 years. In addition, a comprehensive coverage for all
asbestos-related health care services will be needed--
hospitalizations, emergency services, surgeries, supplemental
oxygen, etc.
I would like to finish by mentioning something that is
extremely important to our community, and that is research.
Research means more now, in this setting, than ever. The Libby
amphibole asbestos is a unique fiber mix which has not been
studied to understand exposure risk. From observations in the
CARD population, low exposure has been related to impairing
lung disease. This type of asbestos has increased potency,
requiring less cumulative exposure to cause disease. The
disease caused by Libby asbestos progresses much more rapidly
than has been seen in other asbestos-exposed populations.
We recently recognized an asbestos-related disease in a
young man who was exposed by repeatedly working with
vermiculite contaminated yard and garden soils for 5 years,
from 1992 to 1997. There is a critical need for epidemiological
studies to best understand exposure risks to this highly toxic,
unsteady contaminant, Libby amphibole asbestos. The CARD is in
the unique position, with the ability to track and follow low
asbestos exposure in school graduates and residents moving to
Libby after the W.R. Grace mine closure.
At the current time, the EPA does not seem sufficiently
supportive of these activities of the CARD and the value they
can contribute to a baseline risk assessment that the community
would be willing to accept with confidence. In addition, these
studies would greatly benefit the millions of service workers
and homeowners around the Country that deal with Zonolite
insulation. CARD needs adequate research funding in order to
keep the exposed population cohesive and carry out the much
needed epidemiology studies.
In closing, I would like to thank the Committee for this
opportunity and would be pleased to answer any questions. Thank
you.
[The prepared statement of Dr. Black follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Baucus. Thank you very much, Brad.
Marianne, we look forward to hearing from you.
STATEMENT OF MARIANNE ROOSE, COMMISSIONER,
LINCOLN COUNTY, MONTANA
Ms. Roose. Good morning, Senator Baucus and Committee
members. Thank you for the opportunity to appear before you
today.
My name is Marianne Roose, and I am currently serving in my
twelfth year as a Montana Lincoln County commissioner. I was
Chairman of the Board of Commissioners in 1999 when W.R. Grace
requested that their reclamation bond be released by the State
of Montana, DEQ.
Upon hearing of this request, several former W.R. Grace
employees came to the Board of Commissioners to request that we
deny approval for the release of the bond due to the severe
health conditions that many were experiencing and had been
experiencing for several years, even though the mine had been
closed for some time. They did not believe that it had been
properly cleaned up and that there were too many unanswered
questions about the health effects from the asbestos exposure.
Before agreeing to release the bond, the Commissioners held
a public hearing to provide our constituents the opportunity to
express their concerns. It immediately became evident that
there was a reason to be concerned for the health condition of
former W.R. Grace employees and their families.
As more information about the danger and the effect of the
contamination from the asbestosis at the mine was exposed, it
was revealed that, in fact, many former employees and their
family members and the community at large had been exposed. At
this point, we too agreed that the bond should not be released.
Senator Baucus came to Libby and listened to our concerns
about the exposure of contamination and both current and long-
term health conditions of the community of Libby, Montana. He
was instrumental in bringing EPA Administrator Christy Todd
Whitman to Libby for a congressional field hearing in September
2001. It was held in the Libby High School gymnasium and was
attended by the entire school body and many community
residents.
After Administrator Whitman heard the depth of exposure and
the devastation to our community and constituents, she promised
our community that she would return to D.C. and declare Libby,
Montana a public health emergency. This promise was a ray of
hope at a very dark time that just maybe the many people that
were suffering from the asbestos exposure would be cared for.
Well, the declaration never happened. Administrator Whitman
left her position soon after giving us her promise, so today, 7
years later, we are still struggling with devastating health
issues and the contamination of our community from the
exposure, and we are still waiting for the EPA to declare a
public health emergency in Libby, Montana due to the extreme
asbestos exposure. We believe that the promise of a public
health emergency is needed even more today than ever due to the
continual increase of individuals needing treatment.
The Center for Asbestos Related Disease, also known as the
CARD Clinic, is the one place in Libby that provides ongoing
health care for the victims of exposure. The Clinic is where
patients feel confident that they will receive the treatment
and the care they need.
I am also the Commissioner that serves on the Board of
Directors of the CARD Clinic. Through this position, I have
become well aware of the urgent need for financial assistance
for the continued success and daily operation of the Clinic so
it can continue providing the much needed health care and
research for those individuals who are so desperately in need.
The victims from exposure to the asbestos contamination in
Libby, Montana need your help in recognizing their plight. We
need you to declare a public health emergency so their health
care needs for today and the future can be met. Libby, Montana
needs financial assistance and a long-term plan to care for
these victims of asbestos exposure.
Thank you again for allowing me to appear here before you
today and to share with you our community's needs and health
care concerns. It has been an honor and I would be happy to
take any questions.
[The prepared statement of Ms. Roose follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Baucus. Thank you very much, Marianne, for being
here today.
Dr. Black, I would like you to explain to us the gaps in
health care coverage. That is, what can the people in Libby get
today in terms of health care and what can they not get, and
how much is that gap growing?
Dr. Black. The gap has been growing for a number of years
in terms of the W.R. Grace Plan initially was a little more
generous in terms of the coverage they provided and have, over
the years, continually diminished the coverage for the
asbestos-related problems. The issues are two, and they not
only have declined more and more in the care of those folks
that are included in the health care program, that they have
allowed to be on the program, but now they have had a trend of
increasing denial of even access and acceptance on that plan.
So what we are seeing are people that basically are not
falling within any kind of health care-related asbestos,
because if they do not get on the Grace medical plan, then they
don't enjoy the same benefits they might get from the LAMP
program, which supplements that, because, once again, the LAMP
program came to the community through a court decree from EPA
settling with W.R. Grace over access to the mine site. W.R.
Grace had the ability then to audit all activities of that LAMP
plan, so that LAMP plan did not have any flexibility, per se,
to really help the community as much as it could because it had
the W.R. Grace oversight and audit that limited it.
Senator Baucus. If you could just put this in personal
terms. Let's take a typical person who has lived his or her
life in Libby, something is not quite right in terms of their
health, and comes to the Clinic, say. What can you do and what
can't you do for this person, and what other medical care is
available or not available? I think if you kind of put it in
personal terms, it can quantify a little bit. Are we talking a
big deal here? Are we talking about something that is pretty
small?
Dr. Black. We are talking about a big deal. The real cost
of this disease are, when people get ill, they need oxygen,
they need support services, they end up with hospitalizations,
they have health complications that require hospitalizations.
Senator Baucus. So how many people now are getting oxygen,
what percent, roughly?
Dr. Black. Well, the real kicker has been the oxygen,
because what has happened is when people do need to go on
oxygen--and there are well over 100 individuals on oxygen, and
growing on a monthly basis--the kicker has been when these
folks are submitting costs for supplemental oxygen as their
lung disease worsens, there is an effort to require folks to
drive miles to get a second opinion and find out that they
don't have asbestosis and don't need oxygen, therefore, find
another reason.
Senator Baucus. This is part of the W.R. Grace plan that
requires that second opinion?
Dr. Black. Yes.
Senator Baucus. And how far does someone have to drive?
Dr. Black. Well, you know, from Libby, it is 4 hours in
most directions to where they ask them to go, and these are
physicians that have been willing to cooperate with Grace in
the consulting roles.
Senator Baucus. Does Grace, then, designate the physician
for the second opinion?
Dr. Black. There is a list that they recommend that they
see.
Senator Baucus. And what if this person were to go to
another physician to get a second opinion, not on the list?
Dr. Black. Well, they stay off the list usually. In other
words, will they provide that care? They have, in instances,
done that, where they have gone to a second opinion not on the
list. They have gone to those individuals and have been able to
get services, but it is with a lot of great difficulty. You can
imagine some of the older individuals needing oxygen and being
required to make these efforts to travel and get these
opinions. It is a roadblock to individuals who really don't
like the thought of going on oxygen and are hesitant anyway
because of the stigma of going on oxygen. It becomes a very
difficult patient management situation.
Senator Baucus. So one is stigma and difficulty; second--I
don't want to put words in your mouth, but it sounds like the
physicians on the W.R. Grace list are potentially or actually
company-friendly physicians.
Dr. Black. Well, they very much are, of course, and it is
unfortunate.
Senator Baucus. So, as a practical effect, then, it is hard
to get oxygen or get the medical care that the people need.
Dr. Black. Yes. And then if they are on the Grace program,
then that falls back on the LAMP program, which will pick up
the oxygen if they have been on the Grace program and Grace
won't cover it. The LAMP program does pick up that supplemental
oxygen benefit. So that is how we have been using it, but that
is why it is depleting that fund now, because they are shifting
the cost over to our LAMP program, which is very limited.
Senator Baucus. In addition to oxygen, what other medical
care do people need? In addition to oxygen.
Dr. Black. Well, just like the gentleman we talked about,
who had to have chest surgery to remove fluid and clearly
related to his asbestos disease, a common problem; and for them
not to cover a common problem like that and the cost of it is
just another--how could you not? That is the very thing you
promised to do when you came, was to take care of the very
clear asbestos-related health problems.
Senator Baucus. So the W.R. Grace plan would not cover that
procedure?
Dr. Black. Absolutely not. They would send a letter to the
patient and say look for some other cause; maybe you have heart
failure, something else--anything to direct the responsibility
for reimbursement elsewhere.
Senator Baucus. So how do people pay for this if they go
someplace? If the company won't cover it, how do they pay for
it?
Dr. Black. And LAMP can only cover up to 25,000 per person,
so you know how expensive some of these procedures are, and
then it ends up falling back on the patients.
Senator Baucus. So, by and large, covered medical care is
inadequate. Is that true?
Dr. Black. Pardon?
Senator Baucus. Covered, as insured, medical care is
inadequate. Is that true?
Dr. Black. Right. Exactly. It is far from it.
Senator Baucus. Far from it.
Dr. Black. As a matter of fact, any statistics that one
might acquire from the current insurance reimbursement process
would not be reflective of the true costs that are out there
that are not being met.
Senator Baucus. If a public health emergency were declared,
has anybody looked into what medical care would the be
provided? I am just wondering whether anybody has made that----
Dr. Black. Well, we have already done it. Through the LAMP
program we have actually got a--that is a county-appointed
board that oversees the LAMP insurance program, and it is
administered by New West, a third party administrator for the
group, and they have been very good to help out in this
situation. But we have the mechanism in place and the
understanding of dealing with insurance, and we pretty well
have laid out what a program would look like to meet those
needs. We have that in Libby.
Senator Baucus. But, altogether--the W.R. Grace plan, CARD
facilities, and the LAMP program--I am just trying to get a
sense of what medical needs are covered as insured and which
are not, and what percent are covered and what percent not. Can
you give us a sense of that generally? I know it is a hard
question. Just generally.
Dr. Black. I am going to say basically, I am just going to
roughly say maybe 50 to 60 percent, roughly. I think we are way
under what it should be.
Senator Baucus. Right. Now, again, if you don't know the
answer to this question, but I just ask hypothetically if a
public health emergency were declared, it is clearly likely
more medical care would be available, is that your
understanding?
Dr. Black. I would certainly hope so.
Senator Baucus. That is what the statute says. The statute
says medical care will be available if an emergency is
declared.
Dr. Black. I think it is really hard for folks to
understand how they can be burdened with this disease, and when
they get ill and then find out that there is nothing there and
they are taking care of it themselves.
Senator Baucus. Absolutely.
Dr. Black. Out of dignity to folks in our community, we
have said all along at the CARD we will do everything we can to
provide the services for you that address the asbestos issue.
Senator Baucus. What about your finances?
Dr. Black. We are obviously nonprofit, and with the goals
we are trying to make for our community and provide that
service, it is very difficult.
Senator Baucus. Marianne, could you tell us what was the
community's perception of EPA back in 2001? What was their
attitude toward EPA, their perception of EPA at that time?
Ms. Roose. Well, at that time, I think people were
cautious. This was a Government agency that was coming in to
Libby, as everyone is, but they were hopeful when Christy Todd
Whitman made the declaration, and EPA had an onsite coordinator
names Paul Pernard that came to the community an worked with
them and built a great amount of respect and trust, and the
community began to listen and to cooperate and be welcome that
they had come there and were going to help take care of the--
cleanup the contamination and help provide for some of the
health care needs.
Then, as the declaration was not made, I would say there
was a sense of anger and that no one really cared about Libby,
Montana and the conditions that the people were suffering and
the contamination in the homes. After that happened, I think
there was a great sense of untrust toward EPA, and Paul worked
very hard with the community in the cleanup process. And that
was his role; Paul's role was different from the health care
issues.
In the cleanup process, the community began to have this
respect and feel hopeful in regards to the cleanup, but they
felt very betrayed in regards to the health care issues, and
that is where the CARD Clinic helped to fill that need, and
they had a place to go to listen and to help treat the
concerns. But toward the EPA and the lack of a declaration of a
public health emergency, there was not good feelings on behalf
of the community.
Senator Baucus. What you just said was very much my
impression too, because back about 2001 there was hope.
Ms. Roose. There was hope.
Senator Baucus. And, as you say--that is my observation
too--they developed a trust with Paul.
Ms. Roose. They did, and a respect.
Senator Baucus. And a respect for Paul, and he is a really
hard-working, interesting kind of guy. People liked him. And
then about the time that, apparently, OMB stepped in, it
appears, and told EPA not to declare a public health emergency,
things went down hill.
Ms. Roose. Yes, they did.
Senator Baucus. Could you describe that? There was a period
in there, several years--in fact, it is still the case, pretty
much, with respect to the medical side, the health effects
side.
Ms. Roose. The cleanup part, I think, there became a lot of
confusion, and as commissioners we were often asked to address
concerns on behalf of our constituents and the way that EPA was
doing things, and we would hold public meetings and work with
some of the contractors on the onsite procedures. I can tell
you that, as commissioners, Paul always responded to any of our
questions or any community needs.
But all of a sudden Paul was gone, and we had a new onsite
person, and at that point in time we saw a real shift in the
attitude of the community that things weren't getting done, EPA
wasn't listening to the needs of the community. And that went
on for some time and that gentleman left and they brought Paul
back, and at that point in time the community was hopeful
again; there was someone back that truly cared about the
community's needs, not only the cleanup, but the health care
needs just maybe would be addressed.
As time went on, and then they started the toxicology
study, everyone was saying, after all this time, this is all we
have accomplished? We are going to start all over again? Here
we were, like 7 years later, and we were going to go back and
start at the beginning? And Paul did a great job explaining to
the community why that had happened, why they needed to do it
now; it should have been done in the beginning, it wasn't. So
people accepted that and they were ready to move on.
Now Paul has left and we are in the process of we don't
actually have an onsite coordinator. We have the lady in charge
that--is it Kathy Hernandez, is that who it is? Tenzio. And she
explained to us that they have a process that they have to
advertise to hire, and that she will be filling that position.
So we really don't have anyone in our community that is a part
of it, such as Paul was, that is actually in that lead
position, and it will be March.
Senator Baucus. It is very unfortunate that he is not here.
I asked that he testify at this hearing, but the EPA office
said no, they would not allow him to testify. They wouldn't
allow Chris Weiss to testify either, the lead toxicologist, who
is very cognizant of and knows the conditions. It is must
unfortunate.
You were going to say something, Brad?
Dr. Black. Just to go on further with Paul Pernard. He is
the only one that had a grasp of the whole picture of Libby,
where it was going----
Senator Baucus. Well, he cared.
Dr. Black. Yes. And he knew where the problems were. Once
he came back onboard--he was gone when these studies, the tox
studies got shelved. When he came back onboard, there was a
great organization of let's get this going, let's get the
studies going. And you were aware of this at that time, you
were very strongly encouraging the tox studies to get moving.
So we convened in July 2007 and Paul helped organize that
meeting and we had a group of scientists working together to
develop the study areas that we felt were going to be important
to contribute to our baseline risk assessment.
And, lo and behold, as Paul indicated where this needed to
go and recognized the problems related to this material and
how, when you stir it up, you develop a lot of fibers around
you and that means you clean it up or you see the visible
stuff, somehow that got kiboshed. I feel like he was on a very
good track of doing the right stuff in Libby and somebody said,
whoa, we are not going to spend that kind of money. That is
just the feeling you have and that is the way it ended.
But we are going through these when Paul was there, things
move and the community sees finality. Now we are back to where
we have this sinking feeling of, you know, visits by the
Inspector General and things that are negative for the
community and things we don't want to see happen. We want to
move ahead.
Senator Baucus. Well, I know you do, and I want you to too,
and we are doing all we can to help make that happen.
Do you both believe that a public health emergency should
be declared?
Ms. Roose. Yes.
Dr. Black. Oh, yes.
Senator Baucus. That might not get Paul back, but it would
get things back on track again, don't you think?
Ms. Roose. Yes.
Senator Baucus. It must be pretty hard on both of you,
seeing the suffering in Libby over the years.
Ms. Roose. Very hard. When you see workers who see their
children and their spouses who are suffering from the disease
because they brought it home on their clothing, and the
innocent family members who also have the disease and they
share that with you, and you see a young man that I have known
since he was a little boy who never worked a day at the mine;
his father worked at the mine, he is 33 years old. He had four
children and his wife was expecting their fifth child, and he
became ill and it was discovered that he had asbestosis.
Thirty-three years old with five children yet to raise, no
health care, and a real fear of how his family was going to be
taken care of, how he was going to provide for them. A very
innocent victim.
Senator Baucus. And there are many stories like that.
Ms. Roose. Many. And as a commissioner, I would like to
share with you that we have positions in county government we
have had individuals retire from. I am thinking of our
sanitarian and county planner. As we advertised for those
positions and we had very qualified people from across the
Nation that actually applied, and as they went onsite and did
an exploration about Libby, Montana, they actually had
interviewed for the job, we had offered it at two different
times. When they went online and looked at Libby, Montana and
they found out about the asbestos exposure, they declined the
employment. And we have seen that in several positions.
Senator Baucus. We have all seen it. Frankly, that is what
really hit me so hard when I saw Les for the first time. He
explained to me how he worked up at the mine, he would come
home just caked with the stuff; embrace his wife and the kids
would jump up into his lap, and he is now no longer with us,
and just how awful he felt at the time knowing that he passed
this disease onto his family innocently, no idea it was
happening. The disease itself is bad enough, but just also
knowing that he passed it on is so wrenching.
Ms. Roose. Senator, it was Les Skramstad that was the very
first W.R. Grace employee who came to the Board of
Commissioners when the newspaper article came out that W.R.
Grace had requested their bond be released. It was Les
Skramstad that came to my desk and asked Chairman--he shook his
finger at me and said don't you dare release that bond without
hearing from our community first, and it was Les that actually
started that process.
Senator Baucus. In a certain sense, Les is probably shaking
his finger at EPA right now for not declaring a public health
emergency.
Thank you both very, very much. You have been most helpful
and we are going to get to the bottom of this, hopefully this
year, but if not this year, next year is another year,
different Administration and new opportunity, and we are going
to make sure that the people of Libby get justice. Thank you
both very much.
Ms. Roose. Thank you.
Dr. Black. Thank you.
Senator Baucus. The hearing is adjourned.
[Whereupon, at 11:45 a.m., the committee was adjourned.]
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