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Atchley v. Louisiana Pacific Corp.

Court of Workers Compensation of Montana

September 26, 2018

HAZEL ATCHLEY Petitioner
v.
LOUISIANA PACIFIC CORP. Respondent/Insurer.

          Submitted: June 12, 2015

          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT

          DAVID M. SANDLER JUDGE

         Summary: Petitioner seeks death benefits from Respondent, contending that her husband died from asbestos-related disease and that his last injurious exposure to Libby asbestos occurred in the course of his 9-year employment at Respondent's lumbermill, which was located approximately 2 miles outside of Libby. Respondent denied Petitioner's claim, contending that the decedent was not exposed to an injurious amount of Libby asbestos while working at its mill and did not develop asbestos-related disease as a result of working at its lumbermill.

         Held: The decedent had an OD and was exposed to Libby asbestos in amounts greater than the Libby background level during his 9 years of employment at Respondent's lumbermill. Under the potentially causal standard of In re Mitchell, he suffered his last injurious exposure to asbestos at Respondent's lumbermill. The decedent's OD caused his death, and Respondent is therefore liable for death benefits.

         ¶ 1 The trial in this matter began on May 26, and continued on May 27 and 28, 2015, at the Flathead County Justice Center in Kalispell. On June 12, 2015, counsel delivered closing arguments and this Court deemed the matter submitted for decision. Jon Heberling, Laurie Wallace, Dustin Leftridge, and Ethan Welder represented Petitioner Hazel Atchley (Hazel). Todd A. Hammer and Benjamin J. Hammer represented Respondent/Insurer Louisiana Pacific Corp. (LP).

         Exhibits: This Court admitted Exhibits 2, 3, 5 through 9, 12 through 14, 16, 17, A, B, E through G, J, K, M, N, P, V through X, Z, CC, and DD without objection. This Court admitted Exhibits 4, 11, and 15 after LP withdrew its objections. This Court admitted Exhibits C, D, H, I, L, AA, and BB after Hazel withdrew her objections. This Court admitted Exhibit 1 over LP's objections. This Court admitted Exhibit Y over Hazel's objections. This Court sustained LP's objections to Exhibit 10 and did not admit it.

         ¶ 2 Witnesses and Depositions: This Court admitted the depositions of Hazel, Alan C. Whitehouse, MD, Gregory Allen Rice, MD, Patrick Geer, Guy Boileau, Gregory Carson, Michael James Parker, Darryl Judkins, Robert McLeod, Glynda Kay Olson, Phillip Dean Spencer, Larry Allen McQueen, and two depositions of Terry Spear, PhD. Dr. Whitehouse, Dr. Spear, Elias Harmon, Robert Sheriff, and Dana Headapohl, MD, MPH, were sworn and testified at trial.

         ¶ 3 Issues Presented: This Court considers the following issues:

Issue One: Did Edward Atchley sustain an occupational disease?
Issue Two: Is Louisiana Pacific Corp. liable to Hazel Atchley for Edward Atchley's occupational disease?
Issue Three: Was Edward Atchley's death caused by an occupational disease?
Issue Four: Is Hazel Atchley entitled to her costs, attorney fees, and/or a penalty?

         FINDINGS OF FACT

         ¶ 4 The following facts are established by a preponderance of the evidence.

         ¶ 5 From the 1920s to 1990, Zonolite Company and then W.R. Grace operated a vermiculite mine, which was 7 miles northeast of Libby, near Rainy Creek. The vermiculite contained a unique, amphibole-type asbestos, called "Libby amphibole" or "Libby asbestos," and is oftentimes abbreviated "LA." The open pit mining, and the processing and transportation of the vermiculite, released dust containing many tons of Libby asbestos into the atmosphere each day.[1] The Libby asbestos fibers are microscopic and remain airborne for hours once introduced into the air. The dust drifted and was blown, oftentimes for miles, until it settled and contaminated whatever it landed upon.

         ¶ 6 All types of asbestos are hazardous, but Libby asbestos is extremely toxic, meaning it results in higher disease rates to those exposed to it compared to other types of asbestos. It can cause lung cancer and asbestos-related disease (ARD), an umbrella term that describes several conditions in which lung tissue is damaged, including pleural thickening, pleural plaques, and interstitial fibrosis, each of which results in a loss of respiratory function that worsens over time.

         ¶ 7 Because of the mine's proximity to Libby, the town had a hazardous "background" or "ambient" level of asbestos when the mine operated. In the mid-1970s, the level was measured at 1 fiber per cubic centimeter, which exceeds the current OSHA limit. Approximately 7 to 9% of residents with no occupational or familial exposure - i.e., exposure from a member of the household who brought asbestos home on his clothes - developed ARD.

         Edward's Exposures to Asbestos Before 1985

         ¶ 8 Edward Atchley (Edward) experienced many exposures to asbestos during his lifetime.

         ¶ 9 From 1951 to 1955, Edward served in the U.S. Navy. He was onboard the USS Herbert J. Thomas, a ship that contained copious amounts of asbestos. He worked in an engine room and part of his job was repairing lagging, which contained asbestos. This work created a highly-contaminated cloud of dust which remained suspended for long periods. The dust in the engine room was so thick it was described as looking like a "snowstorm." Edward frequently woke up coughing, with his lungs "burning." The Naval industrial hygiene division conducted studies finding levels of asbestos on ships between 48 and 200 asbestos fibers per cubic centimeter, which greatly exceeds the current OSHA standard, which is 0.1 fibers per cubic centimeter of air for an eight-hour time-weighted average. A substantial number of the servicemen who served on these ships developed ARD.

         ¶ 10 After he left the Navy, Edward moved to Libby, where he lived and worked for most of the rest of his life and was exposed to the background Libby asbestos.

         ¶ 11 In 1955, from 1958 to 1959, and again from 1963 to 1971, Edward worked for J. Neils Lumber Co., at its large plywood mill in Libby, which is referred to here as the "Stimson Lumbermill," as Stimson Lumber was the last company to operate a mill on the site. The Stimson Lumbermill was contaminated with Libby asbestos in amounts beyond the Libby background.

         ¶ 12 Edward worked at the W.R. Grace vermiculite mine for two to four weeks, an area that was highly contaminated with Libby asbestos.

         Edward's Employment at the LP Lumbermill

         ¶ 13 In 1985, Edward began working as a security guard, employed by Watson Security, at the lumbermill owned by LP (LP Lumbermill) in Libby. After 1986, Edward worked directly for LP as the full-time dayshift security guard at the LP Lumbermill.

         ¶ 14 The LP Lumbermill was a "stud mill," which cut small logs into dimensional lumber. Logs from the area around the W.R. Grace mine were delivered to the LP Lumbermill. The LP Lumbermill produced 250, 000 board feet per day when it ran two shifts. The LP Lumbermill also had a chipping operation, which processed wood chips for landscaping.

         ¶ 15 The LP Lumbermill was located approximately 2 miles northeast of downtown Libby, between Highway 2 and the Kootenai River. During Edward's employment, the site included two log yards; one was in the southwest part of the property, while the other was in the northeast part of the property. The seven buildings were in the southeast part of the property. The LP Lumbermill had two dry debarkers, machines that cut the bark off the logs, which were located just outside the mill buildings. The debarkers created a large cloud of thick dust.

         ¶ 16 The railroad track ran roughly northwest-southeast, along the southern border of the property. A railroad spur ran onto the property, which was used for railcars transporting wood chips from the LP Lumbermill. This area was also extremely dusty.

         ¶ 17 Edward worked from a guard shack, which was in the southwest corner of the property, west of the log yard, and approximately 100 yards from the railroad tracks. The guard shack sat next to an unpaved road near the entrance, and any vehicle entering or exiting the mill passed directly by it. In addition to employee traffic and trucks carrying finished lumber from the LP Lumbermill, about 40 logging trucks entered the LP Lumbermill during each day shift, although it could be as few as 20 or as many as 100. Edward registered each vehicle that entered or exited the property, and inspected trucks leaving with finished lumber. Edward also performed an hourly security check by walking throughout the property, looking for security issues and fire hazards. He routinely walked near the debarkers. Although LP sporadically used a water truck to keep the amount of dust from the road down, it was not effective, and the area around the road was extremely dusty, particularly in the late spring, summer, and early fall.

         ¶ 18 Edward worked full-time at the LP Lumbermill until it ceased operations in 1997, a period of 9 years. Edward did not obtain other employment after he left the LP Lumbermill.

         ¶ 19 On March 31, 1997, an asbestos inspector inspected the buildings at the LP Lumbermill for asbestos-containing materials (ACMs), such as pipe wrap, insulation, floor tiles, and roofing cement. He did not identify any ACMs in the buildings. Thereafter, the buildings were demolished. There were no soil samples done at this time.

         Edward's Diagnosis of ARD and his VA Claim

         ¶ 20 On April 5, 2001, Edward - who was experiencing significant trouble breathing and a frequent cough, underwent a screening at the Center for Asbestos-Related Disease (CARD) clinic with Brad Black, MD, which revealed lung abnormalities consistent with ARD. A CT scan taken April 16, 2001, confirmed Dr. Black's ARD diagnosis. Dr. Black also diagnosed obstructive disease, noting that Edward smoked two packs of cigarettes a day for approximately 50 years.

         ¶ 21 On April 17, 2001, Edward applied for benefits with the Department of Veterans Affairs (VA), alleging that his ARD arose from his military service. He wrote that in the Navy, he worked with ACMs, and when the ship's guns were fired, his bunk was covered in white dust from the insulation above it. Edward submitted letters from former shipmates who corroborated his statements that he was exposed to asbestos. He stated, "I truly believe that this constituted the most hazardous exposure to asbestos fibers I ever experienced." He denied any other occupational exposure to asbestos. He contended that his lungs had deteriorated since then, culminating in his ARD diagnosis.

         ¶ 22 On October 16, 2001, Ramandeep Brar, MD, at the Spokane VA Medical Center confirmed the ARD diagnosis and opined that it was related to asbestos exposure during Edward's military service.

         ¶ 23 On March 6, 2002, Dr. Black wrote a letter regarding Edward's exposures to asbestos, noting that he was exposed "very significantly" in the Navy, and had "some other exposure in the Libby area" when he worked at the W.R. Grace mine and the Stimson Lumbermill, which had vermiculite insulation and asbestos-wrapped steam pipes.

         ¶ 24 On March 14, 2002, Edward wrote to the VA to clarify Dr. Black's letter dated March 6, 2002, because Edward did not recall asbestos exposure at the W.R. Grace mine. Edward explained that he worked on the construction of a building, but never worked inside the mine. He also was not aware of working around ACMs at the Stimson Lumbermill. He contrasted these alleged exposures with his time onboard ship in the Navy, where dust from asbestos insulation was constantly visible.

         ¶ 25 The VA concluded that Edward was entitled to a 30% disability rating for service-connected ARD.

         Noble Excavating and the EPA's Soil Testing

         ¶ 26 The Environmental Protection Agency (EPA) contracted with Noble Excavating (Noble) to supply soil from the LP Lumbermill property for remediation projects for properties in Libby contaminated with Libby asbestos.

         ¶ 27 In May 2001, the EPA tested three samples of "soil-like" material from the property, which was labeled as "fill," for asbestos contamination using polarized light microscopy (PLM). The data does not say whether the material was from the surface or subsurface. The EPA did not detect any asbestos in these three samples of "fill." However, PLM is not as powerful as transmission electron microscopy (TEM) and is not as reliable for detecting levels of Libby asbestos in soil. Indeed, the engineering firm which prepared the Remedial Investigation Report for the EPA for the Libby Asbestos Super Fund Site explains that soils that test "non-detect" for Libby asbestos via PLM can release Libby asbestos into the air when disturbed:

         LA Levels in Soil that is Non-detect by PLM

The EPA uses PLM-VE to estimate levels of LA in soil in Libby. This is a semi-quantitative method that reports a sample as a non-detect when the microscopist cannot observe any LA in the sample. However, from the studies of outdoor soil disturbance, it is evident that soils that are non-detect can release LA fibers to air. For this reason, the EPA used more powerful electron microscopy methods to estimate the average level of LA in soils that were reported as non-detect by PLM-VE. The results were variable between samples, but the average LA concentration was approximately 0.05% by mass.

         ¶ 28 Noble substantially excavated the property to obtain clean fill material. Noble dug borrow pits - i.e., pits from which material is taken for use as fill in another location. The pits were approximately 50 feet deep. Noble stored the fill material from the borrow pits in stockpiles.

         ¶ 29 Patrick Geer, who was the plant manager at the LP Lumbermill from 1990 to 1997, testified that Noble dug up the aggregate materials, i.e., rock and sand, and used some of the material out of the ground, screened the material if they needed a smaller size, and crushed the material if they needed a fractured material. Greer testified that the EPA tested the surface soils and the stockpiles and explained: "when you designated a source that you were going to furnish to the government, they would go run their samples prior to awarding that material, and then when it was in stockpiles, before it was delivered, they would take samples." He further explained: "prior to them awarding the contract, they would - you had to designate a source, and you had to - and then they would go out and physically view the source and take their own samples and determine whether it is suitable or not."

         ¶ 30 However, there is nothing in the test data indicating that the EPA tested the surface soil from the time the LP Lumbermill operated. The test data states that from 2006 to 2013, the EPA tested 303 samples of "soil" and "soil-like" material from the Noble pit for asbestos with PLM. The test data states that the samples were taken from the "borrow source" and/or the stockpiles. Of the 303 samples, 144 were labeled "topsoil." But, all of the samples were deemed to be "subsurface." The Remedial Investigation Report prepared for the EPA dated June 2014, states, in relevant part, as follows:

Once LA-contaminated soil is removed from properties [in Libby], various types of fill materials are used to backfill excavated areas. In general, fill materials consist of topsoil and topsoil amendments, common fill, structural fill, and sand. Prior to use, samples are collected from borrow sources, either in situ or stockpiled, to determine if it contains LA, organic, and inorganic contaminants (above background levels), and to ensure it meets project-specific physical characteristics. Given the agitated nature of borrow sources, all samples collected are considered subsurface.[2]

         ¶ 31 The vast majority of the samples were deemed "non-detects," meaning the microscopist saw no asbestos contamination; only six of the samples tested positive for trace amounts of Libby asbestos. The EPA did not test the samples with TEM.

         ¶ 32 In 2007 and 2009, the EPA tested surface soil from properties next to Noble, which had not been excavated, via PLM. Out of the 16 tests, three tested positive for Libby asbestos.

         Industrial Hygiene Evidence

         Terry Spear, PhD

         ¶ 33 Hazel retained Dr. Spear to investigate whether Edward was exposed to asbestos during his work at the LP Lumbermill. Dr. Spear has a PhD in industrial hygiene and is a professor emeritus at Montana Tech. Dr. Spear began researching asbestos contamination in the Libby area in 1996. Dr. Spear has co-authored at least seven peer-reviewed publications pertaining to asbestos, including several regarding contaminated tree bark in the Libby area. Dr. Spear was also part of studies in which the researchers simulated collecting firewood and building fire lines in the forest around the mine to determine if these activities releases asbestos into the air. The studies showed that activities such as cutting trees with a chainsaw and digging trenches released asbestos fibers into the air.

         ¶ 34 Dr. Spear opined that the air at the LP Lumbermill was contaminated with Libby asbestos in amounts beyond the Libby background. Dr. Spear concluded that Edward was exposed to airborne Libby asbestos, in amounts greater than the Libby background, while working at the LP Lumbermill. He identified two sources for asbestos contamination at the LP Lumbermill beyond the Libby background: tree bark from the trees delivered to the LP Lumbermill and the railroad.

         ¶ 35 Dr. Spear explained that the tree bark in the forest surrounding the W.R. Grace mine became contaminated with Libby asbestos. In 2004, he was part of a team that investigated whether loggers risked exposure to asbestos from contaminated tree bark in the forests surrounding the W.R. Grace mine. The peer-reviewed results, published in 2006, [3] demonstrated that tree bark is a reservoir for asbestos fibers. Tree bark nearer to the mine had the highest concentration of asbestos fibers, but asbestos existed in tree bark many miles away, with the most significant contamination found within roughly 11 miles from the mine. Dr. Spear also noted a study showing that trees and duff in the Flower Creek drainage, which is approximately 10 miles southwest of the W.R. Grace mine, which was downwind, was contaminated with asbestos. Dr. Spear noted that the EPA's bark and duff sampling continued into 2013 and showed contamination. Dr. Spear explained that the results of the sampling were variable, and depended on many factors, including whether the area is shielded by a hillside. Thus, he agreed that not every tree within 11 miles of the mine was contaminated. However, given the high levels of contamination in the area, and given the fact that the contamination was widespread, Dr. Spear testified, "my opinion is that any timber harvesting within this area that we've been describing certainly has a high probability of being contaminated with asbestos fibers."

         ¶ 36 Dr. Spear determined that the LP Lumbermill received logs contaminated with asbestos. Dr. Spear noted that when Edward worked at the LP Lumbermill, there was a substantial amount of logging in the area surrounding the mine, including in the Rainy Creek drainage, and the drainages adjacent to the mine, including Alexander Creek and Jackson Creek. Dr. Spear interviewed loggers, logging truck drivers, and mill workers, who told him that logs from the area surrounding the mine were delivered to the Stimson Lumbermill and to the LP Lumbermill.

         ¶ 37 Dr. Spear also reviewed depositions in this case in which the deponents testified that logs from the area surrounding the mine were hauled to the LP Lumbermill. Michael James Parker was a log hauler. Parker hauled logs from the Rainy Creek drainage - an area that is heavily contaminated with Libby asbestos - to the LP Lumbermill from 1988 to 1994. Parker explained that when he referred to the Rainy Creek drainage, he was referring to a large area which includes Fleetwood Creek, Jackson Creek, Alexander Creek, Bristow Creek, Bear Creek, and Souse Gulch. Likewise, Darryl Judkins, who worked at the LP Lumbermill from 1989 to 1995, recalled that logs came to the LP Lumbermill from the area surrounding the mine. He explained, "we're talking millions of board feet of logs, the whole area around here."

         ¶ 38 Dr. Spear also relied upon contracts between LP and W.R. Grace, and LP and the State of Montana, and timber sale documents between LP and the United States Forest Service, under which LP purchased timber from the area within 11 miles of the mine between 1986 and 1997. When asked why he thought this timber was delivered to the LP Lumbermill in Libby instead of LP's mill in Moyie Springs, Idaho, Dr. Spear explained that in addition to the workers who told him that timber from the area around the mine was delivered to the LP Lumbermill, it was more logical to think that the timber would be delivered to the closest mill, as it would be more economical.

         ¶ 39 In addition to these documented sales, Dr. Spear identified other ways in which the LP Lumbermill obtained contaminated logs: sales from private logging companies, purchases of timber from privately-owned land, purchases of small logs from the Stimson Lumbermill, and purchases of logs harvested by private individuals.

         ¶ 40 Dr. Spear opined that Libby asbestos fibers from the bark were released into the air when contaminated logs were brought into the LP Lumbermill and when LP processed the contaminated logs. Dr. Spear explained that processing logs is an "aggressive operation." Indeed, he explained it is much more aggressive than collecting firewood with a chainsaw or digging trenches in the forest, which releases asbestos fibers into the air. The logs were brought to the LP Lumbermill on logging trucks, off-loaded, scaled, and then stored. This process resulted in pieces of bark being knocked off the logs, which resulted in dust and debris. Dr. Spear also explained that the dry debarking created a tremendous amount of visible dust which contained Libby asbestos. He explained: "And so, basically, any fibers associated with this material on the trees or on the bark would be thrown in every direction, and it would contaminate a large area." He explained that when visible dust is present, "you have intense exposure to whatever's in that dust."

         ¶ 41 As to how the railroad contaminated the LP Lumbermill, Dr. Spear explained that W.R. Grace transported vermiculite from its mine to expanding plants in Great Falls, and in Washington, California, and Arizona, via the railroad. The trains carrying vermiculite west out of Libby travelled on the track adjacent to the LP Lumbermill. Typically, three trains travelled past the LP Lumbermill each day. When the vermiculite was hauled on open box cars, dust blew off the cars. And, when the vermiculite was transported in covered cars, there were leaks. Consequently, the areas adjacent to the railroad tracks in Libby were heavily contaminated with Libby asbestos, in amounts greater than was generally found in and around Libby. Dr. Spear pointed to a study showing that, at a location 7 miles west of Libby, the trees next to the railroad tracks were highly contaminated with Libby asbestos. Dr. Spear also visited the expanding plants in Washington, California, and Arizona, and found that the trees in the neighborhoods of the plants were contaminated with asbestos. Dr. Spear opined that the railroad caused asbestos contamination at the LP Lumbermill in amounts greater than the Libby background level because of the mill's close proximity to the tracks. Dr. Spear noted that the LP Lumbermill guard shack sat approximately 100 yards from the railroad tracks.

         ¶ 42 Dr. Spear also opined that the level of airborne asbestos at the LP Lumbermill guard shack would have been higher than residential exposure in Libby because of the traffic on the dirt road, which kicked up dust containing Libby asbestos. Dr. Spear explained that when the airborne asbestos from the contaminated logs and the railroad fell, it contaminated the ground at the LP Lumbermill. Dr. Spear relied on a study showing that when soil contaminated with low levels of asbestos is disturbed, it can release hazardous amounts of asbestos into the air.[4]

         ¶ 43 Dr. Spear opined that the EPA's soil testing at the Noble site did not undercut his conclusions because the soil the EPA tested "wasn't the original soil that was there when [Edward] was working there" and "was not representative of the surface dust contamination at the time that [Edward] worked there." Dr. Spear noted that the EPA did not obtain contemporary soil samples at the LP Lumbermill; it obtained and tested subsurface samples from the "borrow sources" and stockpiles nearly a decade after the LP Lumbermill closed. Dr. Spear explained that asbestos that contaminated the LP Lumbermill from the contaminated logs and from the railroad stayed at or near the surface. Dr. Spear explained, "I wouldn't expect to see asbestos at 50 feet below ground, but . . . I would expect to see surface contamination, particularly if samples were done at the time that the LP mill was operating."

         ¶ 44 Dr. Spear relied in part on the similarities between the Stimson Lumbermill and the LP Lumbermill to support his conclusion that the LP Lumbermill was contaminated beyond the Libby background. Dr. Spear explained that in situations in which industrial hygienists do not have testing data for one workplace, they look to similar situations to determine whether the workplace was contaminated. Thus, when asked how the data from the Stimson Lumbermill supported his opinion that the LP Lumbermill was contaminated, Dr. Spear explained:

[I]t involves LP, because in the field of industrial hygiene, if we have two plants that are similar industries, for example, and one we have data for, where workers have been evaluated or the contamination has been evaluated, and then we have a similar industry or plant where we don't have any information, it's very common practice in our field to extrapolate information from one plant to the other, so that was my methodology.

         ¶ 45 Dr. Spear explained that the Stimson Lumbermill had several sources of asbestos contamination, two of which were contaminated logs and the railroad. The Stimson Lumbermill processed and debarked logs which came from the area around the mine, many of which were contaminated, releasing dust containing asbestos fibers into the air, which contaminated the Stimson Lumbermill. Dr. Spear noted that a majority of the samples of waste bark at the Stimson Lumbermill were contaminated with Libby asbestos. Dr. Spear explained it was a "very similar exposure mechanism" at the LP Lumbermill, where Edward "was exposed to Libby Amphibole asbestos in the dust generated from the processing of lumber or timber." In response to a question regarding whether he took into account that not every tree in the forest in the 11-mile radius of the W.R. Grace mine was contaminated, Dr. Spear explained: "my methodology was to apply what was known from a lumber mill, which is the same industry in the Libby area which was receiving forested products from the same area and what was associated with the wood chips and the bark from that mill." Dr. Spear also explained that the railcars brought Libby asbestos to the Stimson Lumbermill.

         ¶ 46 Dr. Spear opined that Edward's exposures to asbestos in the Navy, at the Stimson Lumbermill, at the W.R. Grace mine, and at the LP Lumbermill were all significant and sufficient, individually, to have caused his ARD. Dr. Spear disagreed with Edward's belief that the Navy was his only significant exposure to asbestos and explained that Edward could not have known that the dust at the LP Lumbermill may have exposed him to airborne asbestos fibers. Dr. Spear opined that Edward's occupational exposures in the Navy, at the Stimson Lumbermill, at W.R. Grace, and at the LP Lumbermill, as well as exposure from his residing and recreating in the Libby area, contributed to his fiber burden, which is cumulative. Dr. Spear opined that any inhalation of airborne asbestos fibers is "significant" and there is no safe level of exposure, particularly with Libby asbestos, which is extremely toxic. Dr. Spear explained that he could not quantify "the extent to which each of these employment exposures contributed to his asbestos-related disease." He explained: "We have an occupational activity that is bringing asbestos into the site on top of the mining background levels." Dr. Spear explained that given the background level of exposure in Libby, "a person working in Libby in a job that exposes him or her to asbestos fibers, then, essentially, they are adding those fibers on top of the background exposure in Libby. So we're increasing the risk."

         Robert Sheriff

         ¶ 47 LP retained Robert E. Sheriff, MS, CIH, CSP, who is the CEO of Atlantic Environmental, Inc., an industrial hygiene, safety, and environmental consulting firm based in Dover, New Jersey. Sheriff is certified by the American Board of Industrial Hygiene as an industrial hygienist and has approximately 40 years' experience in the field of industrial hygiene.

         ¶ 48 Sheriff agreed with many of the facts Dr. Spear relied upon for Dr. Spear's ultimate opinion. But Sheriff disagreed with Dr. Spear's ultimate opinion that Edward was exposed to asbestos beyond the Libby background while working at the LP Lumbermill.

         ¶ 49 As for Dr. Spear's opinion that tree bark was a source of asbestos contamination at the LP Lumbermill, Sheriff acknowledged that the forest around the W.R. Grace mine was contaminated and could have contaminated the LP Lumbermill if those trees had been delivered to the LP Lumbermill. Sheriff testified:

Well, Dr. Spear and his workers did some pretty extensive sampling of the presence of Libby asbestos in bark samples. That's not surprising. I think they said during the operation of the Grace mine there was approximately five tons a day of dust emissions from the activities of the mine and the screening plant. So certainly you would expect to have asbestos materials in the wood bark, and that that material could be brought into a lumber mill if it was on those logs.

         Sheriff also acknowledged that the EPA conducted studies in 2007, 2008, and 2013, which revealed contaminated tree bark and duff 13 miles away from the W.R. Grace mine.

         ¶ 50 However, Sheriff opined that there was insufficient evidence to conclude that the logs delivered to the LP Lumbermill were contaminated. Although Sheriff had "no reason to doubt" Parker's and Judkins' testimony that logs from the area near the mine were hauled to the LP Lumbermill, he concluded that there was insufficient data to conclude that any logs harvested within 11 miles of the mine came to the LP Lumbermill. And although LP directly purchased some timber in this area from the U.S. Forest Service, Sheriff speculated that LP may have sent this timber to its mill in Moyie Springs, Idaho because it had done so before opening the mill in Libby. Sheriff further found insufficient evidence to indicate that the LP Lumbermill purchased any private timber contracts because no records of such transactions were found. Thus, when asked whether there were contaminated logs processed at the LP Lumbermill, Sheriff testified, "I can't say that one way or another." Sheriff also noted that there was no contemporaneous testing on the logs delivered to the LP Lumbermill and opined that even if there were some contaminated logs delivered to the LP Lumbermill, there is insufficient evidence to conclude that it was a sufficient amount to increase the risk of Libby asbestos exposure.

         ¶ 51 As for Dr. Spear's opinion that the railroad contaminated the LP Lumbermill, Sheriff admitted to the possibility and agreed that the railroad and adjacent properties were contaminated with ...


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