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BNSF asks MT Supreme Court to shield its liability in Libby asbestos claims

Some 1,200 plaintiffs claim railroad helped spread toxic dust in town
Posted at 5:04 PM, Oct 30, 2019
and last updated 2019-10-30 19:40:35-04

HELENA — Burlington Northern-Santa Fe Railroad, facing hundreds of asbestos-related damage claims related to the defunct Libby vermiculite mine, told the Montana Supreme Court Wednesday that its liability should be blocked.

“BNSF did not mine vermiculite, did not mill it, did not load it onto rail cars,” said Dale Schowengerdt, an attorney representing the railroad. “BNSF only transported the final product as freight – freight that federal regulators said was not a hazardous material.”

But an attorney for 1,200 plaintiffs, most of whom are from Libby, said questions remain about the railroad’s role in spreading asbestos-laden material through town from its rail yard.

“Our case is about the casting of toxic asbestos dust into the community of Libby from the rail yards, caused by a disturbance of the dust,” said Roger Sullivan of Kalispell. “That could be the wind, it could be the maintenance activities that the EPA describes, it could be the switching of cars in the rail yard.”

Sullivan said 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 said. “That’s what the Asbestos Court has appropriately reserved for trial: The issue of causation and the issue of damages.”

The Asbestos Claims Court made its ruling in January; BNSF is asking the high court to overturn it and declare the railroad exempt from liability.

W.R. Grace and Co. operated the Libby vermiculite mine for almost 30 years, shutting it down in 1990. Processing the ore created dust that contained deadly strands of asbestos, which, when breathed, can cause fatal lung disease and cancer.

The vermiculite waste also was spread throughout town, used as insulation, on sporting fields and in gardens.

The railroad is arguing several lines of defense: That W.R. Grace is the responsible party, that federal regulation of railroads pre-empts federal law and that BNSF is a “common carrier” that is required to transport material that shippers want to pay the railroad to ship.

“If we’re going to say, `Common carriers, you are legally bound under state and federal law to carry what is presented to you,’ it makes no sense to hold that carrier liable, strictly liable, if something goes wrong,” Schowengerdt told the court.

The plaintiffs, however, argue that BNSF was hardly an innocent bystander, when it came to deadly pollution in the town of Libby.

They say toxic dust accumulated in the rail yard in the middle of town, from thousands of tons of shipped product and other material on the trains, and that BNSF knew about the pollution and its actions that helped spread it beyond the yard.

Supreme Court justices took the case under advisement Wednesday and will rule later – but they had plenty of questions.

Justice Beth Baker asked how the Asbestos Court’s ruling would prevent BNSF from defending its conduct, even though it may not be able to implicate W.R. Grace.

Baker and Justice James Shea also asked plaintiffs’ attorneys how BNSF’s actions that allegedly spread the dust could not fall under the definition of rail transportation, which is regulated by federal law, rather than state.

They also questioned Schowengerdt why BNSF was required by the Environmental Protection Agency to clean up the rail yard, if it didn’t contain toxic material.

Schowengerdt insisted that multiple samples of material in the rail yard showed less than 1 percent levels of asbestos.