Superfund Showdown in Court Over Montana Asbestos Case

Residents of a Montana town are suing a railroad company owned by Berkshire Hathaway and Warren Buffet, alleging asbestos contamination caused by the railroad's operations. The contamination is linked to a vermiculite mine near the Canada border that produced asbestos-laced insulation for decades.

There's a lot going on in the lawsuit, so let's break it down.

Asbestos 101

The lawsuit points to the infamous mine near Libby, Montana, as the source of the problem. Libby is known for being the site of one of the worst man-made environmental disasters in the United States. The site was mined for vermiculite ore, which can sometimes contain asbestos. Asbestos is a group of naturally occurring minerals that can cause serious health problems if inhaled. However, not all vermiculite ore contains asbestos, and the risk of exposure can be minimized by taking precautions when handling the material.

We all know asbestos is bad news, but what exactly is it? It’s a group of naturally occurring silicate minerals that can form long, thin fibers. These fibers are strong, resistant to heat and chemicals, and easily inhaled. When inhaled, these fibers can lodge in the lungs and cause serious health problems. Two significant types of damage that asbestos causes from inhalation are cancer (lung cancer and cancer of the linings of the lung, heart, and chest area, called mesothelioma) and asbestosis, which is scarring of the lungs that can make it difficult to breathe.

Amphibole asbestos is one of two main types of asbestos, although it’s further divided into many different subtypes. This type of asbestos was once widely used in various building and industrial products (like insulation), but its dangerous effects have since been discovered. Amphibole asbestos is considered more dangerous than chrysotile asbestos, the other main type of asbestos. This is because amphibole fibers are thinner and sharper than chrysotile fibers, which makes them easier to lodge in the lungs. Because of the health risks associated with asbestos, its use has been banned or severely restricted in many countries.

You can use our free legal resources for more information on the dangerous of asbestos, where it can be found, and how you can sue for it if you find it in your home.

BNSF's Operations

Burlington Northern Santa Fe Railway Company (“BNSF”) is a major freight railroad network in North America. It specializes in transporting bulk cargo, including coal and intermodal freight containers across the United States. While BNSF isn't a mining company, it plays a critical role in the coal industry by delivering coal from mines to power plants and other industrial facilities. Its large network reaches many coal-producing regions in the western United States, particularly the Powder River Basin.

According to the court’s evidence, From 1923 to 1994, BNSF shipped vermiculate ore from the small town of Libby, Montana. The vermiculite mine at that site, Zonolite Mountain, contained amphibole asbestos. This asbestos wasn't initially recognized and was often mistaken for harmless vermiculite. During the mine’s operation, from 1924-1990, miners, mill workers, and residents of Libby were all exposed to asbestos fibers. The fibers became airborne through mining activities and contaminated homes, schools, and businesses through insulation and building materials made with vermiculite.

Environmental Superfund and Public Health Crisis

Since the diseases caused by asbestos often take decades to develop, a lot of them go undetected for a while. Libby residents began experiencing a surge in asbestos-related illnesses in the 1960s. And while Libby was ground zero, the impact wasn't limited to the town. Vermiculite from the mine was shipped throughout North America, so people in other areas who used vermiculite-containing products could also have been exposed.

The Environmental Protection Agency (EPA) designated Libby a Superfund site in 2002, triggering a massive cleanup effort. The EPA completed the cleanup in 2018, but the health effects continue. Many Libby residents are still battling asbestos-related diseases, and the legacy of the crisis will likely be felt for generations.

Lawsuits Arise Decades Later

Two residents, Thomas Wells and Joyce Walder, at some point developed mesothelioma and eventually died from the condition. In 2021, their estates brought a lawsuit against a number of defendants—BNSF, an insulation company, and a lumber company operating in the same area and the State of Montana — for causing them to develop the condition they claim resulted from asbestos exposure. The court dismissed the charges against the insulation and lumber companies and the State, saying that the evidence linking them to the deaths was too tenuous.

The plaintiffs claim that BNSF's activities caused Wells and Walder to be exposed to “extraordinary high levels of asbestos” [sic] which resulted from BNSF's negligent operation of its railyard, loading facility, and vermiculite transportation. According to the plaintiffs, the company was clearly negligent because “a layer of asbestos-contaminated dust regularly coated the loading facility and the loaded rail cars” and “BNSF's train cars released visible clouds of contaminated dust as they traveled from BNSF's loading facility to BNSF's railyard in Libby.” They say that the company knew of the dangers of the asbestos dust and should have contained it or prevented it from blowing through the town and exposing its residents. BNSF denies responsibility, arguing they didn't know the extent of the health risks.

Other lawsuits from asbestos victims have also been filed against BNSF. The first trial began in April 2024, and there's another trial scheduled for May 2024 in Missoula. This is the first community exposure case against BNSF to go to trial. It focuses on the overall impact on the town, not just a single individual.

Currently, as the trial is underway, there is already a battle between the parties of what testimony can be admitted in court. Since this type of trial can be emotionally charged as people have died, allegedly from the defendant's actions, it is not surprising that there is a lot of argument between the two parties' attorney about what the jury can hear. We can expect charged courtrooms and a good deal of argument over evidence for the next several weeks as the cases play out in front of the jury.

If you fear you or a loved one has been exposed to asbestos, click here for more information about asbestos litigation. FindLaw also has a legal guide to finding an asbestos attorney should you need legal recourse.

Related Resources

• A Brief History of Asbestos Litigation (FindLaw's Learn About the Law)
• Top 5 Things to Do After an Injury (FindLaw's Personal Injury Blog)
• Get Legal Help With an Asbestos Case (FindLaw's Learn About the Law)