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Federal Regulations Will Not Protect Railroad From Liability

Around 1881, gold miners found vermiculite near Libby, MT. Almost forty years later, an organization called the Zonolite Company was started and then began mining the vast vermiculite deposits in the area. Officially, in 1963, W.R. Grace bought the organized mining operation and ran it until 1990. During that period, the mining operation produced around 80% of the world’s vermiculite. Vermiculite is a mineral mined for use in many applications such as potting soil mixtures, and an ingredient in other bulk materials.

Background Leading To The BNSF Case

Shortly before W.R. Grace purchased the vermiculite operation from Zonolite Company, there were recorded cases of employees who developed respiratory problems, and several died due to the complications they endured. At the time, the company denied having any knowledge of any specific or possible health risks that were associated with vermiculite mining or their miners in general.

Vermiculite Mines Contaminated With Tremolite Asbestos

Shockingly, the Grace company leaders at that time were discovered to have known that the vermiculite mined in Libby, MT, contained a high level of asbestos dust. The company officials knew that the asbestos dust, which turned out to be tremolite asbestos, was a significant health risk. Asbestos is a group or cluster of minerals that can be found naturally in the earth. There are six different types of asbestos minerals, which are all found to be carcinogenic. Unfortunately, since asbestos minerals reside inside the earth, they can live naturally inside other mineral deposits as well.

Asbestos Minerals Can Reside Naturally In The Earth

Asbestos has been known to be present in some mineral deposits such as coal, talc, and vermiculite. Exposure to asbestos is widely known to carry severe side effects, which can cause or enhance lung disease, lung cancer, and cause onset of mesothelioma cancer. When asbestos mineral fibers or dust are disturbed, they can become harmful to human health.

EPA Becomes Involved With Voiced Concerns

Although the company knew that the asbestos laden-dust was present, they said nothing to the miners or employees. The leftover vermiculite was also used in playgrounds, gardens, roads, and other locations in or near the town of Libby, MT. In effect, concerned citizens, state governments, and other Montana entities were answered by the Environmental Protection Agency (EPA) about their voiced concerns over asbestos contamination around the town’s area around 1999.

Asbestos Contamination Led To Declaration Of Public Health Emergency

After further investigation, the EPA declared the vermiculite mine site to be placed on the EPA Superfund program’s National Priorities List (NPL) in 2002. Finally, a decade later, after further review, the EPA declared a Public Health Emergency in Libby to provide federal health care assistance for victims of asbestos-related illness caused by the asbestos contamination confirmed around the town of Libby, MT. This unfortunate declaration marked the first time that the EPA ever had to announce a public health emergency.

The State Of Montana Now Presides Over the Disaster Or EPA Superfund Site

As of today, the EPA evaluated more than 8,000 properties in and around Libby, MT. Also, they performed around 2,600 official contaminated site cleanups that included but were not limited to former vermiculite processing plants, schools, buildings, and parks. In effect, after twenty years of mass investigation and cleanup-efforts began, the Montana Department of Environmental Quality now has officially assumed oversight of the declared Superfund site at the beginning of this year.

Railroad Company Found Not To Be Exempt From All Asbestos Contamination Liability

Earlier this month, the Montana Supreme Court decided that BNSF Railway Company, a subsidiary of Berkshire Hathaway, Inc., was not exempt from liability from all actions of their involvement with handling or transporting mined vermiculite that was contaminated with asbestos particles.

Facing hundreds of asbestos-related damage claims stemming from the operations of a now-shuttered vermiculite mine and its alleged role in shipping contaminated materials across the country, BNSF appealed a January 2019 ruling by Montana Asbestos Claims Court Judge Amy Eddy, of Kalispell, who concluded the plaintiffs’ claims against BNSF are not preempted by federal law, as BNSF argued, and that the company is not exempt from liability.

BNSF Appealed Montana Asbestos Claims Court Decision

BNSF appealed Eddy’s decision and asked the state Supreme Court to overturn it, with both parties delivering oral arguments last October. According to Justice Jim Rice, who delivered the March 11 opinion, “BNSF is subject to strict liability because its actions in handling the asbestos constitute an abnormally dangerous activity.”

The plaintiffs’ attorney, Roger Sullivan, stated that the railroad should not be blocked from liability for the role it played in spreading asbestos-laden material through the town of Libby, MT, from its own rail yard. Sullivan’s firm represents around 1,200 plaintiffs who have brought claims against defendants such as BNSF due to their intrinsic involvement with the distribution of asbestos contamination in Libby, MT.

The plaintiffs presented evidence showing that: Dating back to 2003, the EPA released an “Initial Pollution Report” which revealed that “asbestos-contaminated materials were hauled and shipped through the BNSF rail yard, and spilled into the soil for decades,” and that “asbestos is still present in the ground, raw ore, ore-concentrations, and other soil sampled areas at various locations around the Libby, MT, which include the BNSF rail yard.”

Federal Regulations Will Not Prevent Railroad Company From Liability

In disagreement, BNSF argued that the Federal Railroad Safety Act (FRSA) and the Hazardous Materials Transportation Act (HMTA) prevent the plaintiffs’ claims of negligence and common law strict liability in this case. The railway company then disputed the plaintiffs’ argument that their actions were abnormally dangerous because they were conducting business on the railroad and in their company rail yard. In effect, the Montana Supreme Court disagreed with BNSF.

Montana Supreme Court Upholds State Asbestos Claims Court Ruling

Here the court replied with their decision, “Indeed, it is especially relevant that BNSF’s rail yard was located in downtown Libby and its tracks ran through the town, where Plaintiffs, as citizens of Libby, are claiming they were injured by exposure to asbestos while conducting their daily activities.”

The decision rendered by the Montana Supreme Court upholds the prior ruling from the Montana State Asbestos Claims Court’s denial of BNSF Railway Company’s argument that they are exempt from all liabilities under Federal Statutes. Plaintiffs’ attorney Sullivan stated that the state Asbestos Claims Court properly rejected the railroad’s attempts to shield itself from liability, and that the case should continue to trial to decide whether the railroad actions were harmful. “This goes to the issue of causation,” he stated. “ That’s what the Asbestos Court has appropriately reserved for trial: The issue of causation and the issue of damages.”

Secondary Exposure To Asbestos Is Harmful

Living near an active industrial area or railyard that either was or is still in operation can always be subject to possibly being contaminated with asbestos from past activities. Remember, secondary exposure to asbestos carries the same harmful effects that can be likely from primary asbestos exposure. If you or a loved one are suffering from the possible consequences of being exposed to asbestos, please do not hesitate to call an experienced asbestos or mesothelioma attorney. 

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