In the town of Libby, Montana, Paul Resch reminisces about his childhood spent playing baseball on a field made from vermiculite contaminated with asbestos. This field was located near railroad tracks where trains would pass, stirring up clouds of dust as they transported the hazardous material from a nearby mine. Today, at the age of 61, Resch is battling an asbestos-related disease that has severely damaged his left lung, leaving him constantly short of breath and fatigued, with no hope of a cure.
It has been almost 25 years since federal authorities intervened in response to reports of illnesses and deaths in Libby. Despite this, some victims and their families are still seeking accountability from one of the major corporate players in the tragedy, BNSF Railway. It is estimated that hundreds of people have died and over 3,000 have become ill from asbestos exposure in the Libby area. BNSF Railway is accused of negligence and wrongful death for failing to control the clouds of contaminated dust that used to swirl from the rail yard and settle across the town. Vermiculite from the mine in Libby was shipped by rail for use as insulation in homes and businesses across the United States.
The first trial among what is expected to be hundreds of lawsuits against BNSF for its alleged role in polluting the Libby community is scheduled to begin soon. Attorneys for the railroad, which is owned by Warren Buffet's Berkshire Hathaway Inc., deny any responsibility for the situation.
Resch, who currently works at an auto dealership in Libby, is uncertain whether his illness came from the rail yard. However, he remembers that the high school track in Libby also contained contaminated vermiculite, as did the insulation in the walls and attics of homes he entered during his two decades as a volunteer firefighter.
The upcoming trial focuses on the estates of Joyce Walder and Thomas Wells, who lived near the Libby rail yard and moved away decades ago. Both individuals died of mesothelioma, a rare lung cancer caused by asbestos, which is disproportionately common in Libby.
The vermiculite mine several miles away from Libby closed down in 1990, and nine years later, the Environmental Protection Agency arrived in Libby to begin the cleanup. The cleanup efforts have cost an estimated $600 million, with most of the funding coming from taxpayers. Despite ongoing cleanup efforts, authorities say that asbestos levels in downtown Libby's air are now 100,000 times lower than when the mine was still operating.
Awareness about the dangers of asbestos has grown significantly over the years, and last month, the EPA banned the last remaining industrial uses of asbestos in the United States. However, this ban does not include the type of asbestos fiber found in Libby, nor does it address so-called "legacy" asbestos that is already present in homes, schools, and businesses across the country. A government analysis of the remaining risks is expected to be released by December 1.
Asbestos is a durable material that does not burn and is resistant to corrosion, making it long-lasting in the environment. People who inhale the needle-shaped fibers can experience health problems as many as 40 years after exposure. Health officials expect to continue dealing with newly diagnosed cases of asbestos-related diseases for decades to come.
During the years-long cleanup of the Libby rail yard that began in 2003, crews excavated nearly the entire yard, removing about 18,000 tons of contaminated soil. In 2020, BNSF signed a consent decree with federal authorities resolving its cleanup work in Libby, as well as in the nearby town of Troy and along 42 miles of railroad right-of-way.
Last year, BNSF won a federal lawsuit against an asbestos treatment clinic in Libby. The jury found that the clinic had submitted 337 false asbestos claims, making patients eligible for Medicare and other benefits. The judge overseeing the case ordered the Center for Asbestos-Related Disease to pay almost $6 million in penalties and damages, forcing the facility into bankruptcy. Despite this, the clinic continues to operate with reduced staff.
Some asbestos victims viewed the case against the clinic as an attempt to discredit the clinic and undermine lawsuits against the railroad.
In the months leading up to the upcoming trial, attorneys for BNSF have tried to deflect blame from the company, including by pointing to the actions of W.R. Grace and Co., which owned the mine from 1963 until it closed. They have also questioned whether other sources of asbestos could have caused the plaintiffs' illnesses and suggested that Walder and Wells would have been trespassing on railroad property.
U.S. District Court Judge Brian Morris has blocked BNSF from blaming the conduct of others as a means of escaping liability. He has also stated that the law does not support the notion that trespassing reduces a property owner's duty not to cause harm.
Morris has yet to issue a definitive ruling on another key legal issue: whether the railroad's obligation to ship goods for paying customers exempts it from liability.
The plaintiffs argue that the rail yard in Libby was used for storage and not transportation, meaning that the railway is not exempt from liability. They point out that the railroad built a loading facility near the mine, performed economic analyses of vermiculite operations, and helped market and develop new uses for the material.
Montana's Supreme Court has ruled in a separate case that BNSF and its predecessors were more involved in the mine than simply shipping its product.
The pollution in Libby has led to civil claims from thousands of people who worked at the mine or for the railroad, as well as their family members and others from the area.
BNSF has settled some previous lawsuits for undisclosed amounts, according to attorneys for the plaintiffs.
Other entities have also paid substantial settlements. The state of Montana paid $68 million to about 2,000 plaintiffs who claimed that officials had failed to warn them about asbestos exposure. W.R. Grace settled some individual lawsuits for undisclosed amounts of money before filing for bankruptcy reorganization in 2001.
The company also paid $1.8 billion into an asbestos trust fund to settle future cases, as well as $250 million to the EPA for cleanup work and $18.5 million to the state of Montana for environmental damage.
"I sure hope that they give those folks justice," Resch said about the upcoming trials. "I mean everybody took part in it as far as corporate America goes."