W.R. Grace Opinion
Zonolite Attic Insulation not unreasonably harmful, says Court
December 17, 2006
Judge Judith Fitzgerald of the Delaware Bankruptcy Court has issued a 54 page Memorandum Opinion denying claimant's motion in the W.R. Grace case for a Partial Summary Judgement finding Zonolite Attic Insulation (ZAI) does not pose an unreasonable risk of harm.
"The only issue before the court is the nature of the product - specifically, whether the physical characteristics, use, and location of ZAI in homes creates an unreasonable risk of harm", said the Opinion.
Claimants argued that a finding that ZAI was contaminated with asbestos and released fibers during foreseeable homeowner activities is enough evidence to satisfy state consumer protection statutes and to support a finding of unreasonable risk.
The Court disagreed.
Grace argued that contamination and release alone are not enough, but the fiber release from ZAI must be at levels which pose unreasonable risk of harm to human health. The Court agreed with W.R. Grace's argument.
The Environmental Protection Agency and the Agency for Toxic Substances and Disease Registry ("ATSDR") acknowledge that the scientific studies thus far fail to establish a scientific basis to show a relationship between ZAI and health risks but recommend that the public take precautions until more is known. They recommend that homeowners leave undisturbed and, if homeowners choose to remove it, that they hire professionals. These recommendations have been consistent for over 20 years.
"People who have homes with vermiculite insulation should become informed, not alarmed," said Stephen L. Johnson, EPA's Assistant Administrator for the Office of Prevention, Pesticides and Toxic Substances ("OPPT"). In an OPPT study which refused to declare a public health emergency in Libby, despite the argument that ZAI has the potential to create additional asbestos exposure risks to the community. "If our message of 20+ years is adhered to, the risk is minimal", Johnson said. The EPA has been reluctant to make any changes to its longstanding guidance to homeowners.
"Claimants have not produced any evidence of a causal link between any deceptive act, assuming there was one, and any injury. As will be seen, the two facts agreed on [that ZAI is contaminated and releases fibers when disturbed] have not been shown to have caused or to be more likely than not to cause an injury. Therefore, Claimants have not met their burden of proof to a preponderance of the evidence that there is any unreasonable risk of harm from ZAI" said the Court.
Grace experts and Claimant's experts have acknowledged that some levels of exposure pose no risk. Dr. Henry Anderson, Claimants' medical expert, testified that individuals in urban areas live with low levels of asbestos exposure their entire lives without risking their health and that there are levels of exposure to asbestos in ZAI that are not medically significant. ZAI, the product itself, left in place in the attics that it has insulated for up to eight decades, has not been shown to be unsafe.
"In the case before us", said the Court, "there is no evidence that asbestos is released into living or working areas absent large scale renovation or demolition. To the contrary, the evidence established just the opposite: even upon disturbance for foreseeable homeowner activities, asbestos concentrations are not elevated throughout the house."
"We are faced with an assertion that the mere presence of ZAI in attics poses an unreasonable risk of harm but with no evidence to support that contention", said the Court. "Without evidence of the presence of asbestos fibers, the mere potential for contamination and release alone is insufficient", noted the Court.
The ATSDR Libby Study, introduced by Grace, approximates a complete epidemiological study and supports the Grace's contention that ZAI does not pose an unreasonable risk of harm to homeowners. The analysis showed no heightened risk to the Libby community, but lacked a control group.
Because airborne asbestos is a known carcinogen, evaluations of the risk associated with the presence of ZAI in a homeowner's attic can be calculated using dose response figures taken from animal toxicity and epidemiological studies that dealt with higher asbestos exposure rates.
The circumstances of exposure such as frequency, duration and in the case of homeowners, location, must be taken into account in order to determine if the risk, if any, is unreasonable. All tests conducted regarding foreseeable homeowner activities other than removal of ZAI from a home showed virtually no risk, let alone an unreasonable risk. The evidence submitted indicates that outside the attic, when disturbed, the risk of exposure is negligible, said the Court. "In the attic, even on disturbance, fiber levels did not exceed accepted standards employed in the workplace".
The Court concluded, "There is no dispute regarding the fact that ZAI is contaminated with asbestos and can release asbestos fibers when disturbed during foreseeable homeowner activities. However, the contamination and release adduced from the evidence in this case do not establish an unreasonable risk of harm from ZAI home attic insulation."
Story by KLCB Libby News Radio, www.bestcountryaround.com)
Related Links:
W.R. Grace
Libby Asbestos (EPA)
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