Christmas came early for W.R. Grace & Co. this year when U.S. Bankruptcy Court Judge Judith Fitzgerald issued a Dec. 14 opinion stating that the company’s Zonolite-brand attic insulation, used in as many as 35 million U.S. homes and businesses, poses “No unreasonable risk of harm” to homeowners.
The insulation contains asbestos from Grace’s former Libby vermiculite mine, exposure to which is blamed for more than 200 deaths in Libby.
Both Grace and lawyers for Zonolite claimants agree that Zonolite contains Libby asbestos fibers, and that those fibers can be released when disturbed.
But Grace, according to the opinion, argued that “the fiber release from [Zonolite] must be at levels which pose unreasonable risk of harm to human health.”
In her opinion, Fitzgerald agreed, writing that lawyers for the homeowners asserted “the mere presence of [Zonolite] in attics poses an unreasonable risk of harm” but provided “no evidence to support that contention.”
That could be because the evidence isn’t in yet.
As the Independent and other Montana media have reported in the last year, the actual danger posed by the specific type of asbestos found in Libby, and in Zonolite, has never been determined. Recently, U.S. Sen. Max Baucus and the EPA’s Office of the Inspector General were finally able to pressure the EPA into doing a comprehensive study on the risk posed by Libby asbestos. That study has yet to be completed.
Lawyers involved with the Zonolite case did not return phone calls from the Independent, but Dr. Gerry Henningsen, who worked as an EPA toxicologist for 12 years and currently works as a technical adviser to Libby residents on the EPA cleanup, points out the impact such a study might have had on the case.
“There’s no direct evidence to show how dangerous or harmful [Libby asbestos] is,” he says. “If you don’t have any data, how do you prevail in court? You can’t.”
But information on Libby asbestos is expected to become available within the year, and in the meantime lawyers for the Zonolite claimants have already filed an appeal.