[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

=======================================================================

                                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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               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

                              ----------                              
                                                                   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

                              ----------                              


                      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:]
    
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    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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