Document NG2QovOkE90OqmB2w74VvqyBR

FILE NAME Orton ORT DATE 2014 DOC ORT008 DOCUMENT DESCRIPTION Legal - Declaration of Terry Spear PAUL C. COOK SBN 170901 1 DEBORAH R. ROSENTHAL SBN 184241 2 BENJAMIN D. GOLDSTEIN SBN 231699 SIMMONS HANLY CONROY 3 100 N. Sepulveda Blvd. Suite 1350 El Segundo California 90245 4 Tel 310 322-3555 Fax 310 322-3655 S _ 6 Attorneys for Plaintiffs 7 8 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES 1111 ROGER PACKETT individually and as successor to DONNA L. 1122 PACKETT deceased ) Case Nos JCCP4674 & BC525735 ) ) DECLARATION OF TERRY M. SPEAR 1413 Plaintiffs 14 VS. } Date Time January 14 2016 1:45 p.m. ) Department 324 Hon Emilie H. Elias ) 15 ALLCRAFT JEWELRY SUPPLY CO al ) Complaint Filed October 25 2013 1516 Defendants ) Trial Date ) February 16 2016 17 ) 17 ) I Terry M. Spear declare as follows 19 1920 2121 222 2 23 2324 |] 25 2626 27 2828 1 am over the age of 18 years old and not a party to this action I reside at 110 South Hauser Opportunity Montana hold a Ph.D. in industrial hygiene I am a Professor Emeritus of industrial hygiene at Montana Tech of the University of Montana in Butte where I formerly taught courses in industrial hygiene and served as the head of the Safety Health and Industrial Hygiene Department A true and correct copy of my current curriculum vitae is included as Appendix A to this Report 2. have experience in the field of industrial hygiene pertaining to asbestos and have worked on industrial hygieneissues relating to the W.R. Grace mine near Montana about years Libby for 19 I have extensively studied and provided testimony regarding asbestos 1 DECLARATION OF TERRY M SPEAR exposure in and around Libby including during mining activities railroad activities and during 2 the use of vermiculite products contaminated with asbestos I have also testifieidn cases 3 involving asbestos exposure in Libby at the former vermiculite mine at the Libby Lumbermill 4 and at various workplaces in the Libby area I have visited Libby on many occasions and have S visited the former vermiculite mine and the Libby Lumbermill have interviewed scores of 6 former lumber mill and mine workers as well as citizens of Libby I have reviewed thousands 7 of records from W.R. Grace Zonolite and governmental agencies including State of Montana 8 agency records records of third parties relevant industrial hygiene literature and applicable wer 9 statutes regulations and court decisions interpreting statutes and regulations All ofthese 10 materials are the type regularly relied upon by professional industrial hygienists in the 11 performance of their profession I served three years as the Technical Advisor for the Libby 12 Area Technical Advisory Group LATAG I am author on seven reviewed 13 publications pertaining to Libby amphibole asbestos and am still involved in research in the 14 Libby area 15 3. My opinions as stated herein are based on a more probable than not basis and are 16 a result of my education training and experience as well as my review of the literature and 17 documents cited in this report A bibliography of references that I have considered and relied 18 on is included as Appendix B to this Report I reserve the right to alter my opinions based on 19 additional discovery information 20 Orton Company sold vermiculite containing Libby Amphibole Asbestos LA 21 4. The Edward Orton Jr. Ceramic Foundation was established in 1932 to continue 22 the operation of the Standard Pyrometric Cone Company for the benefit of the ceramic arts and 23 industry Orton is the longest continuous manufacturer of pyrometric cones in the world and 24 ships to over 70 countries worldwide Exhibit 1 History of Orton Orton began manufacturing 25 ni pyrometric cones in 1896. As of 2007 Orton was selling over 12 million cones per year this 26 number had decreased from its peak sales in the 1970's and 1980's Exhibit 2 Deposition of 27 Orton's Corporate Designee Gary Childress 11/28/07 at 20 115 28 2 DECLARATION OF TERRY M SPEAR 5. Prior to 1963 Orton packaged its pyrometric cones in sawdust Exhibit 3 Deposition of Orton's Corporate Designee Dale Fronk 5/8/08 at 11-12 In 1963 Orton made the decision to cease packing these cones in sawdust due difficulties in obtaining it the quantities required Id At that time Orton looked at six to eight alternatives to sawdust and 5 subsequently decided to begin using vermiculite from Libby Montana for its packaging 6 material Id Other than Libby vermiculite other alternatives they considered were ground up 7 corncobs peanut shells popcorn and things of that nature Id In considering these various 8 alternatives Orton did not perform any research or conduct any inquiry as to the possible health 9 hazards that may have been associated with these materials Id Further at no time in its history 10 did Orton perform any testing on the vermiculite packaging material it used Exhibit 2 11 Childress deposition 11/28/07 at 95 At no time did Orton provide any warnings to its 12 customers regarding the hazards of the LA vermiculite Orton's Corporate Designee Gary ' 13 Childress testified regarding Orton's purchase use and sale of packing materials contained in 14 the boxes of Orton pyrometric cones over the course of the company's history Id at 116. With 15 regard to Orton's purchases of vermiculite Orton produced as authentic business records a 16 collection of cancelled checks which provided a perspective as to the dates that Orton obtained 17 vermiculite from each supplier See Exhibit 2 Childress deposition 11/28/07 at 46-67 Exhibit 18 4 cancelled checks originally attached to Childress 11/28/07 as deposition exhibit 3 and 19. Exhibit 5 Declaration of Gary Childress 11/1/07 originally attached to Childress 11/28/07 as 20 deposition exhibit 2 21 22 W.R Grace / Zonolite 23 J.P. Austin 24 W.R. Grace / Zonolite 25 J.P. Austin 22 March 1963 - June 1975 September 1975 June 1979 September 1979 - early 1982 July 1982 - March 1983 27 28 3 DECLARATION OF TERRY M SPEAR 1 6. In 1983 Orton ceased using vermiculite as its packaging material not for safety 2 reasons but because the vermiculite created a lot of dust and this dust made the plant dirty 3 Exhibit 2 Childress deposition 11/28/07 at 96 At that time Orton began packaging its cones in 4 styrofoam a practice which continues to this day Exhibit 5 Childress declaration 5 7. After purchasing using and selling vermiculite for eighteen years on September 2 6 | 1981 Dale Fronk Ceramic Engineer for Orton sent the following letter to W.R. Grace & Co. 7 which reads 8 Dear Sirs 9 We are required by Federal law to obtain Material Safety Data Sheets for all 10 material we use in the manufacturing of our product pyrometric cones 11 We are currently using and purchasing from your organization Industrial # 12 expanded vermiculite Although this material does not go directly into our product it is 13 used as a packaging material 14 We would appreciate obtaining the above mentioned Material Safety Data Sheets 15 from you along with any other data on Industrial 2 expanded vermiculite which may be 16 valuable to us 17 Exhibit 6 Orton Letter to W.R. Grace & Co. 9.2.81 deposition originally 18 exhibit 5 attached to Childress 11/28/07 as 19 8 W.R. Grace & Co. responded to Mr. Fronk's request on September 25 1981 which 20 reads 21 Dear Mr. Fronk . 22 This is in response to your recent request for a Material Safety Data Sheet for 23 Industrial Vermiculite # which you have been using as packing material 22 I am attaching a copy of our M.S.D.S. 140 Industrial Vermiculite Libby 25 Source Size # 2 & 3 26 # Expanded Vermiculite is also marketed to consumers as Attic Insulation When 27 processed for this end it is more intensively screened to remove fines 28 4 DECLARATION OF TERRY M SPEAR vermiculite dust and tremolite and in some cases it is treated with a binder of the 2 user to airborne tremolite fiber You may wish to purchase this to limit dust exposure It is readily available at most building supply houses We have prepared the attached Material Safety Data Sheet in a form that is most 5 meaningful to technically aware industrial users who will be aware of the 7 responsibilities placed on them by OSHA Regulations It has been our experience handling significant tonnages of expanded products in 8 our own manufacturing plants that good industrial hygiene practices will limit the 9 airborne exposures of employees to extremely low levels 10 Exhibit 7 W.R. Grace & Co. letter to Orton 9.25.81 originally attached to Childress 11/28/07 as 11 | deposition exhibit 6 12 As referenced in this September 25 1981 letter W.R. Grace attached its MSDS for |13 Industrial Vermiculite # dated June 10 1977. This MSDS states H 14 Synonyms for this materials include Expanded Libby Montana 15 Vermiculite 16 e Industrial Vermiculite # which Orton used as a packing material contains 17 naturally occurring contaminant tremolite 18 OSHA defines tremolite as asbestos 19 The physical handling given to expanded Vermiculite can release both 20 airborne fibers and nuisance dust . 21 When using Industrial Vermiculite 2 the product should be dampened 22 slightly or one should employ other techniques which control airborne fibers and 223 dust 223 223 Id e Personal protective equipment should be used to meet exposure limits 22 Libby Montana vermiculite 22 28 5 DECLARATION OF TERRY M SPEAR | 10 A vermiculite mine located seven miles northeast of Libby MT population 2 2,700 with nearly 12,000 in the surrounding area supplied up to 80 of the world's supply of 3 vermiculite from the early 1900s through 1990 USEPA 2012a Vermiculite expands or pops 4 when heated creating pockets air that made the material suitable for use in building insulation and as a soil conditioner Vermiculite from the Libby mine is contaminated with a 6 toxic form of occurring fibrous and asbestiform amphibole in veins throughout the deposit Pardee and Larsen 1929 Approximately 30-40 of the amphiboles are 8 asbestiform and include winchite richterite tremolite and magnesioriebeckite differing in their 9 relative proportions of cations Mg Ca Fe Na K Meeker et al 2003 Bandli et al 2003 10 Gunter et al 2003 Sanchez et a 2008 Gunter and Sanchez 2009 This amphibole mineral 11 mixture is commonly referred to as Libby amphibole LA 12 11 Expanded vermiculite was used in numerous commercial products throughout 13 the 20th century The largest size or grade 1 was used as a loose insulation attic and wall 14 cavities in dwellings and buildings and in refrigerators and furnaces Keigel 1940 In 15 addition expanded vermiculite has been used in potting soils and other horticultural products 16 and it has also been used as a packaging material and was sold by gardening stores as a 17 gardening product Potter 1997 USEPA 2000 18 12. Other uses include an aggregate for insulation plasters manufacture of fire- 19 resistant insulating boards and acoustic tile Very fine sizes were reported to be used as 20 extenders in gold and bronze paints and inks due to their silver to gold colors that were 21 produced upon expansion Keigel 1940 Commercial names for expanded vermiculite include 22 Unifil Porosil Zonolitefiand MonokotefiKeigel 1940 Bandli and Gunter 2006 23 Amphibole occurrence in vermiculite 2 13. EPA sponsored study Atkinson et al 1982 was conducted to determine the 25 amount of asbestiform minerals in vermiculite from three U.S. mining operations Zonolite 26 Mountain and two South Carolina mines The estimated content of LA referred to as 27 actinolite in Libby raw ore at the head feed was reported as 21-26 by weight and 28 6 DECLARATION OF TERRY M SPEAR in processed ore beneficiated and sized was reported as 0.3 to 7 % by weight Atkinson et al 2 1982 Amphibole asbestos reported as actinolite and anthophyllite was also detected 3 in South Carolina processed and unprocessed vermiculite but in substantially lower concentrations % by weight for the fibrous phases Atkinson et al 1982 Amandus et al 65 1987 reported LA concentrations from internal company W.R. Grace Co. ) sampling in raw ore at the head feed and concentrate as 3.5-6.4 3.5-6.4 3.5-6.4 % and 0.4 - 1.0 % by weight respectively 14. The amphibole content has also been studied in expanded vermiculite 8 Moatamed et al 1986 reported amphibole asbestos concentrations of 0.8-2 0.8-2 0.8-2 % and 0.6 for 9 two samples of grade 2 and 3 unexpanded and expanded Libby vermiculite respectively A 10 study conducted by the USEPA 2000 revealed asbestos concentrations of 0 to 2.8 % by 11 weight in Zonolite brand expanded vermiculite sold in Seattle area retail stores for lawn and 12 garden care use 13 15. Bulk vermiculite samples collected from attic spaces as a component of attic 14 insulation disturbance based studies have revealed amphibole asbestos concentrations from non- 15 detect to % Cowan 1997 USEPA 2003a Ewing et al 2010 Spear et al 2012 Forty 16 Montana homes outside of Lincoln County MT containing VAI all revealed the presence of | 17 LA asbestos in bulk samples Spear et al 2012 18 Toxicity of Libby Amphibole Asbestos 19 16 Occupational exposure to LA is associated with significant increases in 20 asbestosis lung cancer and pleural cancer compared to the rest of the U.S. population 21 Sullivan 2007 In 2009 the U.S. Environmental Protection Agency EPA designated the 22 town of Libby Montana a public health emergency USEPA 2009 This was the first and 23 only time the EPA has made this determination under the Comprehensive Environmental 24 Response Compensation and Liability Act CERCLA 25 17 One of the earliest publications associating Libby vermiculite with pulmonary 26 changes focused on a worker population from a Marysville Ohio fertilizer plant that had 27 utilized vermiculite from the Libby mine and South Africa Lockey et al 1983 This cohort 28 7 DECLARATION OF TERRY M SPEAR 1 became the basis for the RFC published by EPA 2014a Significant correlations were observed 2 with respiratory symptoms shortness of breath and pleuritic chest pain and cumulative fiber 3 exposures Lockey et al 1984 Studies focusing on Libby workers soon followed McDonald 4 et al 1986 included a cohort of 406 men employed at the mine for at least one year prior to 5 1963 and followed them until 1983. Compared with white men in the U.S. the cohort 6 experienced excess mortality with standard mortality ratios SMRs of 2.45 2.55 2.14 for 7 respiratory cancer malignant respiratory disease NMRD and accidents respectively 8 Standard mortality ratios are defined as the observed number of cases over expected The 9 proportional mortality for the four identified mesothelioma deaths was 2.4 Data collection 1010 for a parallel study sponsored by the National Institute for Occupational Safety and Health 1111 NIOSH was initiated at approximately the same time Amandus et al 1987 Amandus and 1212 Wheeler 1987 and included 575 men employed at the mine for a minimum of one year prior to 1313 1970. Similar to the McDonald et al 1986 study SMRs were 2.23 2.43 and 1.44 for 1414 respiratory cancer malignant respiratory disease and accidents respectively Amandus and 15 15 Wheeler 1987 These early occupational studies demonstrated strong exposure 1616 response relationships McDonald et al 1986 Amandus and Wheeler 1987 Antao et al 1717 2012 | : 18 18 18 McDonald published additional work in 2004 in which he updated epidemiology 19 19 data for his original 406 man cohort following them until 1999 McDonald et al 2004 The 2020 SMRS reported in this update for lung cancer and malignant respiratory disease were 2.40 2121 and 3.09 respectively The proportional mortality for the 12 identified mesothelioma deaths 2222 was 4.21 An cause linear model implied a % increase in mortality for mine workers 2323 exposed occupationally to 100 mL and approximately 3.2 increase for the general 2424 population exposed to 0.1f for 50 years McDonald et al 2004 2525 19 An additional NIOSH sponsored study included a cohort of 1,672 Libby miners 2626 millers and processors in 1982 and followed subjects through 2001 Sullivan 2007 2727 Compared with U.S. white men SMRS for asbestosis lung cancer and cancer of the pleura 28 28 8 DECLARATION OF TERRY M SPEAR a were 165.8 1.7 and 23.3 respectively with observed dose related increases in asbestosis and 2 2 lung cancer An update of the Sullivan 2007 cohort was published recently Moolgavkar et Sullivan in 3 al 2010 revealing similar SMRs to In addition estimates of relative risk for lung 4 cancer malignant respiratory disease and total mortality were 1.2 1.4 and 1.06 i respectively with % confidence intervals of 1.06 1.17 1.09 1.18 and 1.04 1.08 6 Moolgavkar et al 2010 2 7 20. One of the latest updates regarding vermiculite vermiculite worker mortality mortality Larson et al | 2010 with a cohort of 1862 Libby miners demonstrated a clear exposure response relationship 9 between cumulative Libby amphibole fiber exposure and asbestosis lung cancer mesothelioma 10 and NMRD mortality A limitation noted for earlier epidemiology studies evaluating lung 11 cancer SMRs in Libby mine and mill workers was the lack of control for cigarette smoking 12 Bias analysis revealed that cigarette smoking had minimal impact on the exposure response 13 relationships reported in this study Larson et al 2010 reviewed by Antao et al 2012 An 14 additional conclusion from this study was the association between Libby amphibole fiber 15 exposure and cardiovascular mortality based on a rate ratio of 1.5 with a 95 confidence 16 interval of 1.1 to 2.0 Larson et al 2010 13 | 17 21. A follow to the Lockey et al 1984 Marysville Ohio fertilizer plant study 18 revealed pleural changes in 28.7 of the cohort Rohs et al 2008 As noted previously this 19 cohort was the basis for the proposed Libby amphibole RfC Pleural changes were originally 2020 reported in 2,2 of the overall cohort and 8.4 of the highest cumulative fiber exposure group 2121 Lockey et al 1984 The study is significant in that the cohort was based on exfoliation plant 22222 workers outside of Libby MT with relatively low cumulative fiber exposure levels compared 222222 to those described in the Libby mine and mill worker studies 24222 22 I_n addition to epidemiology studies that considered Libby mine and mill || 2525 workers research has also included studies evaluating ARD mortality among Libby community 2626 members A section interview and medical testing of 7,307 persons who had lived 2727 worked or played in Libby for at least six months prior to 1991 was conducted in 2000 and 2001 2828 9 DECLARATION OF TERRY M SPEAR by the Agency for Toxic Substance and Disease Registry ATSDR investigators Peipins et al 2003 Of the 6,668 participants > 18 years of age who received chest radiographs pleural abnormalities and interstitial abnormalities were observed in 17.8 and < % of the 4 participants respectively Participant interviews revealed that the factors most strongly S associated with pleural abnormalities were being a former vermiculite mine or mill worker age | and 6 having been a household contact of a former vermiculite mine or mill worker being male 7 Peipins et al 2003 8 23. In 2008 a clinical and exposure summary report for 11 individuals diagnosed 9 with mesothelioma who were not Libby mine or mill employees was published Whitehouse et 10 al 2008 All cases were occupationally exposed individuals The authors reported 11 pleural and peritoneal mesothelioma associated with secondary exposure to LA and concluded 12 that exposure most likely resulted from Libby amphibole contamination in the community the 13 surrounding forested area and areas in proximity to the Kootenai river and railroad tracks that 14 were used to transport vermiculite concentrate Whitehouse et al 2008 The mean LA 15 occupationally related mesothelioma latency period has been reported as 35 years Case 2006 16 The latency period reported for these occupational cases was 13-67 years from the first 17 known exposure Whitehouse et al 2008 18 24. In terms of both occupational and occupational mesothelioma cases current 19 mortality figures indicate one new case per year in Lincoln County Montana McDonald et al 20 2004 Case 2006 Whitehouse et al 2008 Lincoln County has the third highest adjusted 21 mesothelioma death rate in the nation with a rate of 56.1 per million population NIOSH 2008 22 25. A community study of Libby residents who were children < 18 years when the 23 vermiculite mine closed in 1990 revealed positive association between reported 24 respiratory outcomes and certain activities with potential Libby amphibole exposure pathways 25 Vinikoor et al 2012 Of the 1,003 study participants 10.8 reported usually having a cough 26 14.5 reported experiencing shortness of breath when walking up a slight hill or hurrying while 27 on level ground and 5.9 reported having coughed up bloody phlegmin the past year 28 10 D^ CLARATIONOF TERRY M SPEAR Handling vermiculite insulation was positively associated with three of the four outcomes examined compared with never handling vermiculite insulation No association was found 3 between vermiculite insulation in the home and respiratory symptoms and no association was 4 found between any ofthe activities and abnormal spirometry Vinikoor et al 2012 6S 26. A community study was conducted in a densely populated urban residential neighborhood in Minneapolis Minnesota where an expansion facility processed Libby vermiculite ore from 1938 to 1989 Alexander et al 2012 In addition to commercial 8 vermiculite products such as Zonolitefiinsulation and Monokotefifireproofing the facility ' 9 produced a waste material reported by the Minnesota Department of Health to contain % 10 amphibole asbestos Alexander et al 2012 The waste product was piled on the property and 11 offered to the community for use in gardening driveway fill materials etc. The prevalence of 12 pleural abnormalities obtained for the 461 participants was 10.8 The odds ratio associated 13 with direct contact with vermiculite ore waste or ever playing in waste piles and pleural 14 abnormalities was 2.78 95 CI 1.26 6,10 and 2.17 95 CI 0.99 4.78 when adjusted for 15 background exposure Although this study was conducted outside of Libby MT the results 16 suggest that community exposure to Libby vermiculite is associated with measurable effects 17 Alexander et al 2012 18 27. In addition to pulmonary based ARD rates of systemic autoimmune diseases 19 SAID have been evaluated in the Libby community A follow control study was 20 conducted among the participants in the 2000/2001 ATSDR study Peipins et al 2003 with 21 cases including subjects that reported one of three SAIDs in the initial screening systemic 22 lupus erythematosus scleroderma or rheumatoid arthritis and controls including subjects in the 23 initial screening that responded negatively to questions regarding SAIDS Noonan et al 2006 24 Odds ratios among former Libby mine and mill workers > 65 years of age of2.14 95 CI 0.925 5.1 for all SAIDs and 3.23 95 CI 1.31 7.96 for rheumatoid arthritis suggest that LA al 26 exposure is associated with SAIDs Noonan et 2005 Increasing SAIDs risk estimates were 27 reported for participants with relative increases in reported vermiculite exposure pathways 28 11 DECLARATION OF TERRY M SPEAR 1 28. These epidemiologic studies demonstrate clear and significant increases in 2 asbestos disease ARD including asbestosis lung cancer and mesothelioma among 3 former mill and mine workers In addition ARD has been observed in area residents with no 4 direct occupational exposures The most common health outcome among Libby residents and 5 others with low lifetime cumulative fiber exposure levels are pleural changes 6 29. EPA 2003a Disturbed Vermiculite Study EPA collected data from personal 7 and stationary air monitors in the immediate vicinity of people actively engaged in disturbing 8 vermiculite insulation This scenario was intended to assess exposures that might be 9 1010 11 1212 experienced either by homeowners who engaged in activities in unfinished attic areas or for contractors who might come into contact with vermiculite during repair or remodeling activities These data demonstrated that active disturbance of vermiculite results in very high concentrations of fibers as measured by both contrast microscopy PCM and 13 transmission electron microscopy TEM contrast microscopy equivalents PCME The 14 highest airborne concentration of 3.3 total asbestos fibers per cubic centimeter cc by 1415 transmission electron microscopy TEM occurred during the simulation with Zonolite 16 Vermiculite In Phase 2 levels of airborne asbestos fibers were detected during seven 17 simulations conducted in an artificial containment system Bulk analysis of the Zonolite product 18 1919 indicated that it contained trace amounts of asbestos fibers PLM % tremolite TEM 0.1 actinolite Airborne asbestos fibers were detected in approximately half of the total 2020 air samples collected total from all personal and stationary air samples combined The 2121 maximum airborne concentration of 4.3 total actinolite cc by TEM occurred during the first 2222 simulation with dry vermiculite EPA 2003a 2323 30. In another study activity air and surface sampling was conducted in three 2424 homes to evaluate amphibole asbestos exposures during specific activities in attics containing 2525 vermiculite attic insulation VAI Ewing et al 2010 Personal and area air sampling revealed 2626 significant concentrations of airborne amphibole asbestos above background concentrations 2727 2828 12 DECLARATION OF TERRY M SPEAR 1 when VAI was disturbed The highest personal and area concentrations were observed when 2 VAI was moved aside with a dry sweeping method 3 31 According to the Colorado Department of Public Health And Environment 4 Hazardous Materials and Waste Management Division several studies using a variety of 5 approaches including the state of the science for the release of asbestos fibers from 6 significantly % asbestos in debris demonstrated that all types of asbestos fibers can be released into the air or breathing zone during soil disturbing activities resulting in unacceptable g risk that is significantly above acceptable cancer risk level of 1 in million at 0.000004 4X10 9 ) cc EPA IRIS and even above the OSHA limit of 0.1 cc in some cases See 10 http://www.cdphe.state.co.us/hm/asbestos/111021riskppt.pdf htp:/w.cdphe.stae.co.us/hm/asbestos/1021riskpt.pdf htp:/ww.cdphe.state.co.us/hm/asbestos/11021riskpt.pdf ) 32. Addison 1988 1995 Soil > .001 Asbestos Can Generate Excess of 0.1 ml 12 The best information about the levels of asbestos content in soils likely to cause a health risk comes from the Addison et al 1988 experiments where it was recommended that soils 14 containing more than 0.001 asbestos are regarded as being capable of generating airborne 1615 fibre concentrations in excess of 0.1 fml fml the OSHA workplace standard and that 16 precautions to protect the workforce by wetting the soil providing respiratory protection etc. 17 are taken Addison 1995 stated 1818 It would be necessary therefore to take action specifically to control for the asbestos 19 2 220 222222 222222 2323 2244 2255 2266 emissions if soils containing higher levels than 0.001 asbestos were to be handled without significant health risks Asbestos if present in vermiculite is likely to behave in a similar fashion with the asbestos loosely dispersed and readily available for release into the air Even relatively gentle handling of the vermiculite would abrade the friable asbestos splitting fiber bundles and adding to the released fibers Thus even though the carcinogens legislation may impose only a 0.1 limit for packaging and labeling the vermiculite industries would be advised to establish their own target limit of 0.001 for amphibole asbestos Most current supplies of vermiculite could still meet this standard 2828 13 DECLARATION OF TERRY M SPEAR Addison et al 1988 conducted experiments to evaluate the release of dispersed asbestos fibers from soils Addison et al 1988 showed that the most important factor controlling airborne 3 fiber concentrations in the experiments with dry loose aggregate mixtures was the bulk asbestos 4 content and that irrespective of fiber type or soil type high airborne fiber concentrations over 5 200 times the current OSHA Permissible Exposure Limit PEL for asbestos can be generated 6 from soil containijnusgt % asbestos Addison also showed that soil with concentrations of 7 0.1 or 1/10 the EPA action level were capable of producing airborne asbestos levels in 8 excess of 8 times the current OSHA PEL for asbestos Addison 1988 also reported 9 There was a progressive reduction in airborne fibre concentrations at a given dust 10 concentration with reducing amounts of asbestos in the mixtures but this 11 reduction was not proportionate to the reduction in asbestos content below 0.1 . 12 With 0.1 and often 0.01 of asbestos in soils the 0.5 ml Control Limit for 13 chrysotile and the 0.2 ml Control Limit for crocidolite and amosite could be 14 exceeded while respirable dust concentrations were below 5 mg the 15 nuisance dust OEL Similarly it is apparent that the clearance limit of 0.01 ml- 16 1 could be exceeded with any of the 0.01 and 0.001 asbestos mixtures if 17 respirable dust concentrations approached the nuisance dust OEL 18 Early Knowledge of Libby Amphibole LA Asbestos Hazards 19 As of 1956 the State of Montana was aware of the presence of asbestos at the Zonolite | 20 mine and mill operation MT State Report 8/13/1956 In a confidential report to Zonolite in 21 22 23 24 25 26 27 1956 the State warned of the toxicity of asbestos by stating that the asbestos dust in the vermiculite dust in in the air is of considerable toxicity and is a factor in reducing the dustiness of the plant The report expanded the asbestos toxicity discussion by describing the potential for respiratory fibrosis that is associated with asbestos exposure The asbestos fiber stimulate the formation of a diffuse fibrosis Report and Cover letter from Wake to Bleich 9/21/56 In a report to Zonolite in 1959 the State further described the toxicity of asbestos by stating that According to Ellman 1933 1933 Inhalation of asbestos dust must be 28 14 DECLARATION OF TERRY M SPEAR expected sooner or later to produce pulmonary fibrosis depending upon a length of exposure 2 and b nature and concentration of the dust Pulmonary asbestosis once established is a 3 progressive disease with a bad prognosis its treatment can only be symptomatic In this 4 report the State provided results of the 13 dust samples collected in the six floors of the dry 5 mill In addition to particle analysis to determine concentrations for comparison to the nuisance 6 dust standard the concentration of asbestos was also determined and reported Report and 7 Cover letter from Wake to Bleich 1/12/19591/12/1959 In a report to Zonolite in 1962 the State noted 8 that dust concentrations had increased from the two previous evaluations 1956 and 1958 9 reported in 1959 The results of 20 dust samples were reported Analyses were compared to 10 exposure limits for mica rather than nuisance dust and asbestos The asbestos content of the 11 dust is the controlling factor for making the maximum allowable concentration 5 mppcf 12 Report and Cover letter from Wake to Bleich 4/19/1962 In a report to Zonolite in 1963 the 13 State reported that there was as serious dust concentration particularly in view of the quantity 14 of asbestos known to be in the mixture Report and Cover letter from Wake to Bleich 15 4/11/1963 The State sent additional communication to Zonolite in July of 1963 regarding the 16 results of six vermiculite samples that were analyzed to determine the actinolite 17 content The percentage of asbestos reported as actinolite ranged from 6.2 to 22.5 18 Letter from Wake to Bleich 7/3/1963 In a report to Zonolite in 1964 the State discussed the 19 results of six dust samples conducted in the dry mill In this report the State specifically 20 warned that asbestos exposure has the potential to cause cancer including mesothelioma citing 21 work by Selikoff as well as British and South African investigators The report further added 22 that while the above situation does not apply specifically to the operations of your plant the 23 asbestos content of the material with which you are working appears to provide some serious 24 potential for the development of disease if not properly controlled Report and Cover letter , 25 from Wake to Bleich 5/11/1964 26 In the early 1960s asbestosis began appearing on the death reports of former vermiculite 27 mine workers Glenn Taylor a worker at Zonolite was diagnosed with asbestosis in 1959 28 15 DECLARATION OF TERRY M SPEAR Discharge Summary of Glenn Taylor 3/20/1959 Glen Taylor died of asbestosis in 1961 2 Death Certificate - Glenn Taylor 9/15/1961 The State also had notice of deaths due to 3 asbestos related pulmonary issues or corpulmonale lung related heart failure of Zonolite 4 employees Charles Wagner a mechanic in 1961 Death Certificate of Charles Michael 5 Wagner 10/14/1961 Albert Barney a drymill worker in 1964 Death Certificate of Albert Burr Barney 1/12/1964 and Walter McQueen a miner in 1966 Death Certificate of Walter 6 Leo McQueen 10/30/1966 , 8 9 CONCLUSION 10 33. Based on the information presented in this report and my research and 11 knowledge of the issues relating to Libby Amphibole Asbestos LA and asbestos in general as 12 well as my education training and experience in the field of industrial hygiene it is my opinion 13 that the vermiculite packing material that Orton obtained from W.R. Grace and used as packing 14 material in the boxes of Orton Pyrometric Cones sold in the early 1970s 1980 and 1981 was 15 contaminated with LA Furthermore activities involving the disturbance of that vermiculite .1816 including rummaging through the vermiculite to locate and extract the cones and cleaning up 17 any vermiculite that spilled out of the box during that process would have in all probability .18 dispersed respirable amphibole asbestos fibers into the air and into the breathing zone of the 19 19 222 222 222 person or persons performing those activities I declare under penalty of perjury under the laws of the State of Montana and the United States that the foregoing is true and correct 222222 Dated this 21st day of December 2015 in Opportunity Montana 23 24 24 25 26 26 Terry Spear 27 27 2828 16 DECLARATION OF TERRY M SPEAR