EPA plan for Superfund upkeep raises concerns in Lincoln County

The drum beat pounded by Lincoln County officials thumped one consistent theme in recent months.

And that was: Don’t expect residents to shoulder the costs of sampling for asbestos contamination or cleanup that might be required in the weeks, months and years ahead.

After all, the reasoning went, residents didn’t cause the contamination. They have been its victims.

On April 27, EPA and DEQ released two plans designed to guide protection of environmental remedies for Operable Unit 4 and Operable Unit 7 of the Libby Asbestos Superfund Site. One was an Operations and Maintenance Plan and the other was an Institutional Controls Implementation and Assurance Plan.

OU4 includes residential, commercial and public properties in and around Libby and OU7 includes the same array of properties in Troy.

Neither plan lessened fears among county officials that residents might end up having to pay to remove contamination from their property under certain circumstances.

Officials had reacted with frustration in early March after the Montana Department of Environmental Quality proposed a few scenarios in which Lincoln County residents might get saddled with testing and cleanup costs.

“Ludicrous,” said Mark Peck at the time. He is chairman of both the Lincoln County Board of Commissioners and the Libby Asbestos Superfund Oversight Committee, or LASOC.

Peck said not long after that LASOC and DEQ had made progress toward resolving some sticking points. Then COVID-19 hit and a meeting set for March 18 in Libby was cancelled. The virus also delayed EPA’s April 1 handoff to DEQ of Operations and Maintenance responsibilities for OU4 and OU7.

Institutional controls are administrative or legal measures meant to help reduce the potential for human exposure to pollutants and to protect the integrity of a remedy by limiting land or resource use. Such controls can be as straightforward as a warning sign posted at a contaminated site.

Operations and Maintenance plans focus on activities associated with a remedy that must be performed, such as inspections, after completion of a remedial action.

A joint news release from EPA and DEQ said the Operations and Maintenance Plan “will ensure the safeguards put in place are effective and permanent to protect the public from the remaining risk of exposure.”

The physical remedy for OU4 and OU7 left contamination in subsurface soil and otherwise encapsulated it in inaccessible areas where EPA judged it did not present a risk of exposure.

But any number of activities, ranging from excavation to structural renovations, could disturb the remedy and yield the potential for exposure.

The EPA divided the Libby Asbestos Superfund Site into eight “operable units.” Once the agency judged that a unit had been adequately remediated the focus shifted from cleanup to Operations and Maintenance – a phase designed to protect the Superfund remedy and define plans for responding to the emergence or reemergence of contamination.

As expected, the Operations and Maintenance Plan released April 27 describes the large role to be played by the Lincoln County Asbestos Resource Program in protecting both the Superfund remedy and regional residents. ARP has been funded though a cooperative agreement with EPA; a new cooperative agreement will be negotiated with DEQ.

ARP provides education and consultation, working with property owners and contractors to try to ensure public safety and preserve the cleanup work first launched years ago by EPA.

The EPA’s Operations and Maintenance Plan cited ARP’s work when addressing concerns expressed by Peck, LASOC and George Jamison, a member of LASOC and the Lincoln County Board of Health, that county residents might get saddled with financial or legal liability for asbestos contamination discovered on their property.

EPA said institutional controls and the Operations and Maintenance program “have been developed to minimize the financial burden of addressing [Libby amphibole asbestos] as long as the proper steps are taken with ARP and DEQ.”

EPA said any asbestos identified during the formal “property evaluation notification” process “would be included as appropriate for financial reimbursement, upon evaluation by ARP and authorization by DEQ.”

The April 27 joint press release from EPA and DEQ reported that the processes for reimbursement of property owners or contractors for planned disturbances of the remedy, along with decision criteria, will be in the Operations and Maintenance Manual for operable units 4 and 7.

Peck has expressed concern that LASOC and the county have not had a chance to review the manual in advance of its adoption. DEQ has replied that the manual will be a “living document” meant to adapt as necessary to remain relevant to changing circumstances.

Meanwhile, the EPA reiterated in the Operations and Management Plan released April 27 that it would not authorize use of settlement funds to pay for sampling and cleanup of a property where the owner previously refused access to EPA or its contractors during remediation.

Peck has voiced concerns about this stance, noting that someone who inherits or considers buying the property might balk at doing anything with it if forced to pay for sampling and cleanup. The result could be abandoned and deteriorating properties, he has said.

And Peck has expressed unease about the reimbursement process outlined to date by EPA and DEQ. As envisioned, a property owner would be reimbursed for expenses deemed eligible after an approved contractor has removed the asbestos contamination.

Peck said April 29 that he has asked the agencies to clarify who becomes the “owner” of the contamination discovered on private property between the date of its discovery and a property owner’s potential reimbursement of remediation expenses.

He said he worries a property owner could become, in Superfund parlance, a “potentially responsible party.”

Peck said he is concerned also about those county residents who might be unable to pay up front for remediation and then wait weeks or months for reimbursement.

He and Jamison have said they believe the EPA and DEQ have enough money to ensure that property owners aren’t hit with sampling or cleanup costs.

“The biggest concern is [agencies] putting the onus on the landowners,” Peck said.

Jamison said concerns about reimbursement and the handling of properties where EPA was refused access remain unresolved with DEQ.

“We understood that EPA would not support funding refusals, so it is to be expected that would be reflected in their documents,” Jamison said. “Likewise, they describe the reimbursement approach as that is what was being advocated at the time the draft EPA documents were out for review.”

He said LASOC will continue to advocate for an approach to both issues that is favorable to residents of Lincoln County.

The EPA has about $12 million set aside for Operations and Maintenance. DEQ will access this money through a cooperative agreement with EPA for activities EPA deems appropriate for Operations and Maintenance. Among other things, this money will help fund the Lincoln County Asbestos Resource Program.

Eventually, the EPA will augment the $12 million with funds, in an amount not yet determined, that weren’t spent during the remedial action phase of Superfund.

In addition, DEQ has about $5 million for Operations and Maintenance that came from a bankruptcy settlement with W. R. Grace and Co., the last owner of the vermiculite mine that was the source of the asbestos.

Finally, DEQ receives $600,000 a year in state funding until 2028. A portion of this money will fund LASOC and other Operations and Maintenance activities.

Peck has cited assurances made in 2001 by Christine Todd Whitman when the then-administrator of the EPA visited Libby and said residents of the region would not bear the burden of paying for cleanup.

Whitman said then that EPA was committed to the common goal of addressing asbestos contamination in Libby.

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

In turn, Shaun McGrath, director of DEQ and a member of LASOC, has suggested that promises made long ago cannot carry the weight of obligation unless accompanied by adequate funding.

In October 2002, EPA added the Libby Asbestos Superfund Site to the agency’s National Priorities List. Seven years later, EPA declared a public health emergency in the region to provide federal health assistance for victims of asbestos-related disease.

The asbestos was and is a legacy of vermiculite mining near Libby conducted initially by the Zonolite Company and later by W. R. Grace. Asbestos fibers can embed in lung tissue and cause asbestosis, mesothelioma and other cancers.