County officials seek clarity about the region's post-cleanup future

A defining moment.

That’s how Lincoln County Commissioner Mark Peck described the transition underway in Libby, Troy and Lincoln County as the state’s environmental agency assumes responsibilities for maintaining Superfund remedies the EPA has deemed protective of human health and the environment.

Peck and commission colleagues want definitive answers about what will happen — in the course of renovations, demolition or new development — when a homeowner or commercial developer encounters or disturbs material contaminated by Libby amphibole asbestos.

Fibers from the asbestos, a legacy of vermiculite mining that began in the 1920s, can embed in lung tissue and cause fatal lung disease.

Commissioners want to know whether and how the EPA or Montana’s Department of Environmental Quality will pay for any sampling or cleanup required as Operable Unit 4 and Operable unit 7 move into what the EPA refers to as Operation and Maintenance for these units of the Libby Asbestos Superfund site.

The physical remedy for Operable Units 4 and 7 (OU4 and OU7) left contamination in subsurface soil and in “inaccessible areas where it does not present a risk of exposure,” according to the EPA.

“The EPA left the material behind in people’s houses and now the EPA is out of here. Is the homeowner now responsible for sampling and cleanup?” Peck asked.

Lincoln County officials continue to seek assurances and clarity in a Superfund process infamously fogged by acronyms and bureaucratese.

They want confirmation residents will be protected from liability in the years ahead if asbestos from the region’s former vermiculite mine is disturbed or newly discovered on their property.

They want a public meeting to help educate residents about what to expect, especially if they find themselves in a position that might require sampling for the presence of Libby amphibole asbestos and subsequent cleanup.

In early January, EPA released an 86-page draft Operation and Maintenance Plan for OU4 and OU7.

OU4 includes residential, commercial and public properties in and around Libby. OU7 includes the same array of properties in Troy. The two units include a total of 8,112 properties that were evaluated and 2,628 that received cleanup, according to the EPA.

The Montana DEQ will be the primary agency responsible for the Operation and Maintenance Plan for the two operable units. The county’s Asbestos Resource Program will continue to work with property owners and contractors to provide information about “best management practices” that are relevant to work that might be performed on their properties.

The public comment period for EPA’s draft Operation and Maintenance Plan ended Feb. 6. Lincoln County commissioners submitted input that day.

The commissioners wrote, “…we want to reiterate our deep concerns surrounding the lack of clarity regarding liabilities on property owners. We cannot support any plan that fails to address these seminal issues.”

Commissioners wrote that they need clarity “surrounding the legal and financial liabilities that our citizens and businesses may face,” and noted, “We cannot make any decisions of support until we have a clear understanding of what those might or might not be.”

They want to know which circumstances allow state or federal dollars to be used for sampling and cleanup and which circumstances preclude such funding.

On Feb. 10, during a meeting in Helena of the Libby Asbestos Superfund Oversight Committee, Peck told fellow committee member and DEQ Director Shaun McGrath that he was frustrated about the lack of analysis, from either DEQ or EPA, of what sampling and cleanup costs might be in the decades ahead.

“We’ve asked for these cost estimates for four years,” Peck said, noting that April 1 has been described as a target date for moving into Operation and Maintenance for Operable Units 4 and 7.

“We’re slamming up against a deadline and we’ve got to have some answers one way or another because what we’ve gotten so far is nothing,” he said.

George Jamison, a committee member and representative of the Lincoln County Board of Health, presented cost estimates he’d calculated for sampling and cleanup costs. The committee considered accepting Jamison’s estimates but ultimately tabled a related motion.

McGrath thanked Jamison for his work but opposed accepting the estimates, even as recommendations.

McGrath then alluded to assurances made in 2001 by Christine Todd Whitman when the then-administrator of the EPA visited Libby. McGrath did not mention Whitman by name but his references were clear.

Whitman, who was EPA administrator during a portion of George W. Bush’s presidency, spoke during a town hall meeting. She said the agency was committed to addressing asbestos contamination in Libby.

“And because we share that goal I want to assure you of something else,” Whitman said that day. “It has never been our plan to look to you to pay for any part of this cleanup, including the cleanup of residential properties.”

McGrath said that assurance, made years ago, did not outline how the work required to maintain the Superfund remedies would be funded going forward. He said it wasn’t realistic to bind future administrations for remediation work without setting aside the funds to make it happen.

“She can’t obligate the state of Montana unless she puts the dollars on the table,” he said.

McGrath added that the state can do only what available resources allow, noting that the DEQ has limited resources.

Peck and others have said there is enough money set aside and what is lacking is clarity about how funding decisions will be made.

Resources include:

- The EPA has about $11 million in Operation and Maintenance funds for all operable units in Libby and vicinity, not including Operable Unit 3, the mine site, and Operable Unit 6, the BNSF rail corridor.

- DEQ received about $5.2 million for Operation and Maintenance as part of the 2008 bankruptcy settlement with W.R. Grace, owner of the vermiculite mine.

- DEQ receives an annual appropriation from a special state revenue fund, with Libby Asbestos Cleanup Trust Fund dollars earmarked for Operation and Maintenance costs.

Meanwhile, Peck said cavalierly discarding Whitman’s pledge to Libby would strengthen distrust in government.

“We’ve been lied to bureaucratically,” he said during the Helena meeting.

Ultimately, McGrath said the DEQ is putting together a costs analysis and should have a draft available in a few weeks. The Libby Asbestos Superfund Oversight Committee agreed to convene for a special meeting once that draft is complete.

Meanwhile, both the DEQ and EPA have agreed to participate in a public information meeting in Libby once the EPA has completed work on the Operation and Maintenance Plan and the Institutional Control Implementation and Assurance Plan.

Peck and others have also said they want to review an Operation and Maintenance Manual being developed by DEQ but both the EPA and DEQ have been lukewarm about that prospect. Mike Cirian, EPA’s onsite project manager in Libby, said the manual will help guide DEQ, the Asbestos Resource Program and contractors as work proceeds in remediated areas.

“This manual is more of a procedural document and written around those who will be implementing the work,” Cirian said.

DEQ officials have said the manual is “a living document,” which will evolve over time.

Peck said the manual’s on-the-ground relevance to the community suggests it should be available for review before it is formally adopted.

“Everything should be available when we have that meeting, including the O&M manual,” he said.

In 1999, EPA responded to citizen, local government and media concerns about exposure to asbestos from the vermiculite mine. EPA placed the Libby site on the federal Superfund program’s National Priorities List in October 2002, roughly a year after Whitman’s visit.

The Operations and Maintenance plan for Operable Units 4 and 7 will be the final step before those two units are delisted.

Comments filed Feb. 6 with the EPA by Lincoln County commissioners referenced the importance of the transition from remedial action to maintenance of the Superfund remedies.

“This has been a long, complex and deeply personal part of our history and we want to work to make sure we are all on the right side of history as we transition into our new normal,” commissioners wrote.