TESTIMONY OF: Mark Simonich,
Director of the Department of Environmental Quality

TO: The U.S. Senate Committee on Environment and Public Works,
Field Hearing in Libby, MT

DATE: February 16, 2000

I appreciate the opportunity to explain to the committee the department's involvement in the various local, state and federal actions that are presently occurring in Libby, MT.

To understand the Department of Environmental Quality's (DEQ) involvement in the Libby investigation, it is helpful to know a little about the department. DEQ was created in 1995 by the Montana Legislature based on the recommendations of a Blue Ribbon Task Force appointed by Governor Marc Racicot.

The DEQ combined nearly all the environmental regulatory programs from the former Departments of State Lands (DSL) and Health and Environmental Sciences (DHES), and the energy programs in the Department of Natural Resources and Conservation (DNRC).

The DSL programs regulated the operation and reclamation of hard rock, coal and open cut mines throughout the state.

The environmental health programs formerly administered by DHES have a clear public health focus because of their ties to the Water Quality Act, Air Quality Act and other similar public health oriented laws.

At the time of reorganization, county health officers from throughout the state expressed concern that moving the environmental health programs out of the health department into an environmental regulatory agency would result in the loss of their public health focus. The Racicot Administration stressed then, as it does today, that public health will remain a primary focus of the DEQ.

The DEQ's mission is to protect, sustain, and improve a clean and healthful environment to benefit present and future generations.

Today the DEQ administers more than 25 environmental laws. These laws address all facets of air quality and water quality (including regulating public water supplies and wastewater systems), as well as various laws relating to the development of natural resources (hard rock, coal, and open cut mining), disposal of solid and hazardous wastes, and cleaning up old areas of contamination (abandoned mines, petroleum contamination and Superfund.)

DEQ has an authorized staff of 400 persons and a biennial budget of approximately $136.8 million. More than half of its budget comes from state special revenue accounts (including fees - 59.5%), a little over a fourth from the federal government (26.6%), and lesser amounts from the state Resource Indemnity Trust (8.5%) and the state general fund (5.4%).

In forming the DEQ, I have tried to instill a new vision. While it is true, by our very nature we are a regulatory agency, I truly believe we can accomplish more by working together. My vision is that DEQ will work cooperatively with the public, including regulated entities, and other government agencies to find solutions to the environmental challenges we face, such as those challenges in Libby.

The DEQ is involved in the Libby investigations on several levels. The department is directly responsible for a request to release the final bond at the former mine site under the Montana Metal Mine Reclamation Act (MCA 82-4-101 et seq) (MMRA). Additionally, the DEQ is responsible for enforcing federally delegated air quality, water quality, public water supply, and hazardous waste disposal laws. The department also is responsible for working cooperatively with local and federal agencies to ensure the people of Libby have a clean and healthful place to live.

Vermiculite was discovered in 1881 at Vermiculite Mountain, approximately six miles northeast of Libby, in the Rainy Creek drainage, by miners hoping to discover gold. Its unique properties were recognized by Edward Alley in 1919, and in the 1920s the Zonolite Company was formed and began mining vermiculite. In 1963, W.R. Grace bought the mine. The mine closed in 1990.

At times during the operation, the vermiculite mine produced up to 80% of the world's supply of vermiculite. It has been used in building insulation and as a soil conditioner. Unfortunately, the vermiculite ore from the Libby mine contained an associated waste rock that included a particularly toxic form of naturally occurring asbestos referred to as tremolite.

Passed in 1971, the MMRA acknowledges that mineral mining in Montana is a basic and essential activity that makes an important contribution to the state's economy, but at the same time, proper reclamation of mined land and former exploration areas is necessary to prevent undesirable land and surface water conditions that would be detrimental to the general welfare, health, safety, ecology and property rights of the citizens of the state. At the time the act was passed, almost 320 acres of land at the vermiculite mine were already disturbed and mine tailings were being discharged down the slopes of the mountain into the Rainy Creek drainage.

DEQ has been involved at the mine site since the early 1970s when the Clean Air Act of Montana was passed. A series of 10 air quality permits were issued to W. R. Grace over the years for various pieces of air pollution control equipment and operations, including milling, concentration, drying, screening, storage, loadout, and bagging. The permits regulated primarily particulate emission and opacity limitations. Asbestos is a particulate, but was not regulated separately from total particulate probably because there was, and still is, no federal or state ambient air quality standard for asbestos. The permits were revoked in 1992 after completion of operations. A file review of air quality inspections of the operation indicated general compliance with the exception of one minor opacity violation at the dryer stack.

W. R. Grace applied for a permit to discharge wastewater to Rainy Creek in February 1971. In 1973, the company changed from dry beneficiation of the ore to a wet process with a subsequent increase in the discharge of process water. It received a permit in March 1971, which was extended in November 1971. The permit expired in January 1972. At that time the company had completed construction of the tailings impoundment, which the department considered a no discharge facility and no longer required a Montana Pollutant Discharge Elimination System (discharge) permit.

The impoundment does have an underdrain, which has been sampled. The level of pollutants is within water quality standards so a permit is not needed for the underdrain.

The impoundment has a spillway that discharges asbestiform fibers during high flows. The discharge over the spillway may require a discharge permit, but state Water Quality Bulletin-7 (WQB-7) limits for asbestos fibers may or may not apply. Sampling and health risk assessments in 2000 will evaluate the need for a permit and whether Rainy Creek needs to be diverted around the impoundment during high flows to prevent a discharge of asbestiform fibers.

The following is a brief summary of the mine's permitting, bonding and bond release history under the MMRA:

W. R. Grace applied for an operating permit from DSL in November 1971. Bond was set at $100/acre on the original 320 acres of disturbance. Operating Permit 00010 was approved in January 1972.

In July 1977, December 1978, August 1979, July 1986 and September 1992, the operating permit was amended. The bond eventually increased to $472,000 for 1,004 acres of disturbance in the 1,200-acre permit boundary.

As areas were mined out, concurrent reclamation commenced.

After a legal notice was published requesting public comment, a partial bond release was approved on 14 acres in August 1988 and the bond was reduced to $467,242 for 990 acres of disturbance in the 1,200-acre permit boundary.

Mining ceased in September 1990, and final reclamation commenced. A final closure plan for the impoundment area was approved in September 1992 after a legal notice and environmental assessment were published and a public meeting was held in Libby.

After a legal notice was published, a second partial bond release was approved in September 1994. Reclamation of the entire mine site, according to the approved plan, was completed. The bond was reduced from $467,242 to $66,700 for 740 acres of disturbance in the 1,025-acre permit boundary. The bond was held for maintenance of the reclaimed areas. The bond was no longer needed on the 160 acres released from Operating Permit 00010 for the tailings impoundment. These acres are now regulated under a Montana DNRC Dam Safety Section operating permit (Application No. 1470A) which was approved December 1994.

In December 1994, the Kootenai Development Corporation (KDC) purchased the property and assumed the operating permits and bond. KDC has continued to maintain the site since 1994.

After the public notice process was completed, a third bond release was approved in September 1997 reducing the bonded acreage in the permit area to 125 acres because vegetation on reclaimed areas continued to improve. The bond for maintenance of the reclaimed acreage remained the same on the 125 acres at $66,700.

DEQ's involvement in Libby continued through June 1999 when the current owners of the former vermiculite mine, KDC, requested a final bond release for the property. The department agreed to publish the bond release request, and after a public comment period, decide on whether the bond release was appropriate or whether more work and monitoring were needed. A new public notice process was approved by the legislature in 1999 requiring a legal notice published throughout the area and a press release for statewide media coverage. As a result, a request for public hearing from Lincoln County Commissioners was received. DEQ immediately agreed to conduct the hearing and coordinated all phases of the hearing with the local officials.

The DEQ held a public hearing in Libby to record comments on the proposed bond release on December 1, 1999. The department announced it would accept written comments to January 1, 2000.

The DEQ will respond to individuals who have raised concerns by mid-February. The responses address the entire 1,200-acre mine site, not just the 125 acres in the bond release request. The responses also address other possible health related issues resulting from vermiculite ore that left the mine site and was processed in Libby as well as in other locations throughout the country. A decision on the bond release will not be made until a thorough site review is completed by the department later this year.

While focused on the MMRA, the department's review will also ensure that the entire mine site, access roads and streams in the Rainy Creek drainage are in compliance with state environmental health laws. This review will be coordinated with local, state and federal plans and include:

Air and water quality sampling will be done at the mine.

An air quality monitoring program will document the level of dust and fibers blowing off the entire site.

A tailings and waste rock sampling program will document the levels of asbestos in the materials at the mine site. DEQ knows the materials contain at least an average of 5-7% tremolite based on a Montana Department of Commerce publication from 1990. Water in the mine area will be sampled to identify the level of asbestiform fibers. Based on the results of the materials sampling and the results of the air and water sampling programs, decisions will be made on the amount of reclamation still needed at the mine.

Data collected in the early 1990s and again in 1999 indicate that asbestos levels in road materials in parts of the Rainy Creek road were elevated. Although there is no air quality standard for asbestos fibers along the road, new information indicates that dust on the Rainy Creek road may produce a continuing health hazard. Dust sampling by Lincoln County officials and W. R. Grace in 1991 and 1992 indicated that dust levels along Rainy Creek road did not exceed standards based on the sampling method used at the time. Rainy Creek road is a county road that passes through U.S. Forest Service land and some land now owned by KDC. The DEQ will reevaluate sampling conducted along Rainy Creek road in the early 1990s and review the new data. Only a small portion of the road was within the old mine permit boundary. If there is a health risk, DEQ will coordinate with local and federal officials to address the road issue.

The former DHES and W.R. Grace set up a water quality monitoring program in the early 1990s. Concerns were expressed again in 1999 about levels of milling reagents (diesel, fluoride) in the water in the impoundment as well as asbestiform mineral fibers in the impoundment water. The DEQ re-sampled some sites again in September 1999. The only exceedance of any water quality standard at any sampling station was asbestiform mineral fibers in the tailing impoundment. The department plans to re-sample Rainy Creek and its tributaries during high runoff in the spring when the spillway from the impoundment is flowing. If the level of fibers is above acceptable levels (the ambient water quality standard for drinking water is 7 million fibers per liter in WQB-7), the DEQ will work with the DNRC Dam Safety Program and local and federal officials to address the issue.

The Rainy Creek drainage historically has been impacted by mine waste products since the 1920s. Rainy Creek downstream from the location of the drinking water intake for the mine/mill (lower Rainy Creek) was classified as an impaired (C-1) stream in 1971. Upstream of that point it is classified B-1. The other waters in the Rainy Creek watershed and the Kootenai River are classified B-1. While B-1 waters "are suitable for drinking, culinary and food processing purposes, after conventional treatment; . . ." (ARM 17.30.623), C-1 waters are not suitable for drinking and should not be used for that purpose (17.30.626). As a result, no one uses the water in Rainy Creek or its tributaries for drinking water. The impoundment was constructed in 1971 to contain the mine wastes. Rainy Creek water quality is probably better today than it has been for more than 50 years. Risks from old tailings in the drainage below the impoundment will also be evaluated in 2000.

W. R. Grace and KDC were given permission to dispose of certain solid wastes on site in a landfill. This is allowed under the MMRA as long as the disposal meets Montana solid waste regulations. Materials that were allowed to be buried on site included inert wastes such as concrete. W. R. Grace was also allowed to bury steel and asbestos shingles. Concerns have been expressed about how deep it is to ground water and if that ground water is contaminated by anything that may have been dumped illegally. DEQ plans to sample an abandoned well on the site to address this issue. The depth to water in the well is more than 200 feet deep. More wells will be installed if the old well is not located in an appropriate monitoring location. Reclamation of the disposal site will be reevaluated.

Concerns have been expressed about future development of the mine site. The concern is that new development will introduce more asbestiform mineral fibers in the air and water. DEQ will coordinate with Lincoln County and federal officials to identify controls needed on the old mine site to limit potential problems with future development proposals.

Concerns have been expressed that because the bond has been released on the majority of the site and because the land has been sold to KDC, that W. R. Grace is not responsible if air or water quality problems are identified. W. R. Grace has been cooperating with local, state and federal officials to address the issue. Any necessary cleanup will be conducted under the MMRA, Clean Air Act, Water Quality Act, Comprehensive Environmental Cleanup and Responsibility Act (state Superfund) and Comprehensive Environmental Response, Compensation, and Liability Act (federal Superfund), as needed.

In response to the widespread concerns of possible asbestos contamination in Libby, the DEQ sampled five public and private wells to check for ground water contamination from asbestos. The samples revealed no contamination. The sites included mobile home courts and a plant nursery operating in a former vermiculite screening facility.

City personnel had previously sampled Libby's public water system and found no asbestos contamination. However, DEQ decided to sample the system again to verify the initial findings. The city gets its drinking water from Flower Creek, which is geographically in a different drainage from the vermiculite mine. No asbestos contamination has been reported in that drainage.

Earlier this month the DEQ announced the sample results revealed there was no asbestos in the samples taken from the city's water supply.  One sample was taken from untreated water entering the treatment plant. A second sample was taken from the finished (filtered) water leaving the plant.  Copies of the results were sent to the City of Libby, the Lincoln County Sanitarians Office, and the EPA Office in Libby.

Time and cooperation are the keys to answering the many environmental and public health questions in the Libby area.

Time is an important factor because it took time for the situation in Libby to develop and it will take time to identify and address any environmental and public health problems. Time is also a factor in determining the current investigation's impact on Libby's economy, tourism, business community and its citizens. If testing reveals environmental exposures still exist, it will take time to clean up or stabilize those sites. The result, however, will be an environment safe for people, in addition to being attractive for economic development, existing businesses and people visiting the area.

As for cooperation, when it became apparent that asbestos concerns ranged far beyond those associated with the request to release the bond at the mine, I immediately formed a group of DEQ employees to work on the proposed bond release and asbestos investigation. The group includes: the person in charge of reviewing the proposal to release the bond, a project coordinator to work with EPA on the environmental health investigation, the DEQ's media manager and a project coordinator from the Director's Office to work with EPA and local, state, and federal public health officials. Additionally, these DEQ persons are drawing on the expertise of a number of persons throughout the department.

The DEQ and EPA investigation of possible asbestos contamination in the Libby area began with sampling in December 1999. The team collected air, soil (yard, garden and driveway samples), dust and vermiculite insulation samples. Samples were taken at 32 residences, as well as several potential areas of concern due to historic vermiculite-related activities.

To date, the state and federal team's investigation includes:

Approximately 73 air sample results from 32 residences, two businesses, and two former processing areas were received and reviewed. Transmission electron microscopy analysis was used to count asbestos fibers (10-grid system count looking for fibers 5 microns or greater).

Results from the December air sampling event were released on January 31, 2000. Preliminary results indicate that two potential areas have relatively elevated levels of asbestos related fibers in the 5-10 micron range.

Two homes have elevated levels of asbestos fibers. Chrysotile (serpentine asbestos) was detected in one home and tremolite-actinolite fibers were detected in the other home. ( The chrysotile is not related to the old vermiculite mine)

The two former processing areas with elevated levels of tremolite-actinolite asbestos fibers present are the lumber facility at the former export plant and the plant nursery (Parker business and residence) at the former screening facility.

Of the remaining homes, 24 have trace levels of tremolite fibers. However, to make sure nothing was missed, these same samples were sent back to the laboratory to be re-tested with a more stringent analysis (lower detection limit) looking at fibers from 5 – 10 microns in length using a 30 grid count system. Results are anticipated by the end of February or early March.

The other samples taken during the December sampling will be available in mid-March. These results, along with the air sampling results, will provide a better assessment of the extent of any contamination in residential homes and businesses. These data, along with future residential and business sampling will allow the agencies to determine the best possible solutions.

The team also installed ambient air monitors at four locations in Libby to detect asbestos fibers in outdoor air.

EPA opened a field office (the Storefront, 501 Mineral) in Libby. The office is being shared with DEQ and other state and federal agencies. The office is open from 8:30 a.m. to 5 p.m. every day except Tuesday. Tuesday it is open from 12 noon to 8 p.m.

The environmental and public health sampling and monitoring will determine if there are problems, and, if so, how severe. Based on that information, appropriate local, state and federal agencies will, after considering public review and comment, determine what needs to be done. It is at this point decisions will have to be made regarding any responsible parties and where the money should come from to pay the costs of any cleanup or stabilization activities.

The agencies involved with the investigation are still in the sampling and monitoring phase of the investigation.

So, where does the responsibility lie for the asbestos contamination and health problems in the Libby area? It will take time and patience to answer these questions. Based on the anticipated scientific, technical and medical investigation results, these questions must and will be answered carefully and thoughtfully. In the meantime, the DEQ along with its local, state and federal partners will do their best to administer their respective environmental and public health laws.

With respect to DEQ, if there are violations of the law and a responsible party can be identified, the department will expect the responsible party to take full responsibility for its actions. However, from the DEQ's perspective, the highest priority is identifying and eliminating sources of asbestos contamination that pose a health risk to the public.

Based on the sampling results, the health officials involved will be preparing a health risk assessment to identify the risk of exposure from varying times and doses of exposure in the area that have created the levels of asbestosis observed in the Libby area. Areas exceeding the risk thresholds will be cleaned up. Other areas may simply need to have land use restrictions placed on them to limit risks to acceptable levels. These decisions must be made based on sound scientific data.

Thank you, Senator Baucus, for the opportunity to present this testimony.