A statewide asbestos-disposal contractor has sued the state Department of Environmental Quality, claiming the agency is not fulfilling its obligation to make sure asbestos waste is being safely handled and properly disposed of in Montana’s landfills.
In its petition to force DEQ to step up its enforcement action, Ingraham Environmental of Butte says that as a result of the agency’s “failure to manage asbestos waste … both at the level of inspection and at the entry to appropriate landfills, asbestos waste is regularly being dumped in open air in our landfills, endangering landfill workers, transporters, and anyone who breathes air in the area of these dumps.”
The lawsuit, filed in District Court in Butte-Silver Bow County and assigned to Judge Brad Newman, is the culmination of years of frustration on the part of Ingraham and other industry professionals. They believe many uninspected commercial building demolitions endanger people both at the site of the demolition and again at landfills, when the materials often are dumped without being declared to contain asbestos.
Montana’s laws are quite strict — even more stringent than federal regulations — regarding the disposal of asbestos, the deadly fibrous material that causes several varieties of lethal pulmonary disease, including mesothelioma, a cancer of the lining of the lung with a near-100-percent fatality rate.
But the primary responsibility for compliance is placed on the building owner.
In its initial answer to the lawsuit, DEQ does not deny that the unregulated asbestos dumping described in the suit is occurring but says landfill operators and building owners are accountable.
DEQ says that what Ingraham seeks to force the agency to do — more aggressively enforce the law — is not legally required.
“Ingraham fails to allege a clear legal duty that could support” its petition to force the agency to do more, DEQ’s legal response states. “The petition does not cite any provision” of state law that “places on DEQ an enforcement duty with such precision and certainty that DEQ has no discretion in the matter,” the state argues.
Asked about DEQ’s claim that it is not legally required to enforce more aggressively, Ingraham’s attorney, Cathy Tutty of Butte, had a simple rejoinder: “If not them, then who?”
In its response, DEQ pointed out that the sections of state law giving the agency authority over the handling of asbestos use the world “may” to describe the agency’s enforcement powers.
“By use of this permissive term ‘may,’ these provisions do not mandate the performance of these enforcement activities by DEQ,” the agency’s response states.
To Ingraham and others in the field, that’s not good enough.
“We have the laws on the books,” Doug Ingraham of Ingraham Environmental says. “We think the rules protect us, but there’s no enforcement.”
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In an affidavit in support of the suit, Ingraham asserted that the additional enforcement should not be “a burden to the DEQ, nor should it be to landfill operators … because it is long-standing state and federal law, stipulated in their design and operation and maintenance plans for each landfill, and is a revenue stream that can offset additional costs.”
Ingraham said that a few landfills in the state, most notably the one in Great Falls, have begun to realize that enforcing the laws means revenue. Landfills charge more for the disposal of asbestos-containing materials.
“It is worth noting that regulatory compliance with asbestos regulations in the state of Montana ranges from 5-10 percent to a generous 25 percent by some state calculations,” the Ingraham suit says. “Montana DEQ’s Solid Waste Program is currently failing the state of Montana and violating the right each citizen has to expect clean air.”
"DEQ has been working for the past several years with stakeholders in the asbestos industry to address complexities within the state and federal laws that govern asbestos regulation," DEQ public policy director Kristi Ponozzo said Friday. "Specifically, during 2016, the agency convened an asbestos advisory group to help map out recommendations and priorities to increase awareness and compliance."
Ponozzo said the agency does not know for certain where the numbers cited by Ingraham on compliance came from, although she added that the "5-to-10-percent compliance numbers were associated with a circa-2000 document that was not meant to be a definitive study on asbestos compliance."
Ponozzo added that "the relief requested (in the Ingraham petition), a writ of mandamus, is not appropriate for an action where DEQ does not owe the plaintiff a clear legal duty, but is acting within its discretion."
Ingraham’s family has been in the asbestos abatement business since the 1980s. Doug Ingraham says that his father, Bruce, was trained by “people in the industry who were great resources.” Some of those trainers, he says, have since died of asbestos-related disease.
Indeed, asbestos already has taken a huge human and financial toll in Montana, primarily with the tragedy of the asbestos-tainted vermiculite mine in Libby, which has killed hundreds and sickened thousands more.
Ingraham says the loose-fill Zonolite insulation produced from asbestos-tainted vermiculite mined in Libby is in many of the structures that are demolished or remodeled in the state, presenting an enduring danger for construction, demolition, and landfill workers as well as anyone else in the vicinity when asbestos fibers are released into the air.
But he contends the problem starts with property owners who are trying to save time, money, and paperwork by not having their demolition projects inspected. DEQ, he says, should do more to police them as well as more to train landfill workers and change procedures at landfills to better control the waste stream.
“We’re not asking for new rules,” Ingraham emphasized. “We’re not asking for a wild interpretation of the rules.
"We’re just asking that DEQ assume responsibility.”