Judge denies Grace's motions
On Friday, a federal judge in Missoula denied 6 motions filed by W.R. Grace to dismiss criminal charges against the company and seven of its employees related to the vermiculite mine and milling operations at Libby.
The ruling means the pending trial of criminal charges against Grace and its employees — Alan Stringer, Henry Eschenbach, Jack Wolter, William McCaig, Robert Bettacchi, O. Mario Faviroto and Robert Welsh — will begin Sept. 11 in Missoula.
The indictment says Grace and its employees released toxic tremolite asbestos into the air and took actions to cover up the environmental and health impacts from those operations. More than 1,200 Libby area residents have been diagnosed with asbestos-related disease as a result of exposure to the contaminated vermiculite and more than 200 known deaths are attributed to Grace's operations in Libby.
Federal prosecutors accuse Grace of covering up study after study that showed that exposure to the tremolite asbestos was dangerous. And after the mine and milling operations ceased in 1990, the company took steps to dispose of the contaminated land without addressing the liabilities of that contamination.
Federal prosecutors withdrew two counts of wire fraud charges but retained the ability the refile the charges if they first get a new grand jury indictment.
In the 85-page ruling, U.S. District Court Judge Donald Molloy granted the federal prosecutor's motion to drop those charges without prejudice - leaving open the opportunity to refile. Grace's
attorneys made arguments for dismissal with prejudice saying the federal prosecutor was dropping those charges in order to find more time to respond to arguments against the accusations. Molloy called Grace's arguments weak.
"There is no evidence of improper motive or bad faith on the part of the government, and no apparent strategic benefit to the government in dismissing the wire fraud charges at this point," Molloy wrote.
Malloy did rule in Grace's favor, along with its executives, that criminal actions before Nov. 3, 1999 were beyond the statute of limitation for Counts II through IV.
The federal proesectuor had argued a "continuing offense" before and after 1999. The U.S. Attorney's office argued that the statute of limitations begins when all elements of the alleged crime are completed.
The judge noted in his ruling that the "continuing offense" doctrine is rare and must be included in the criminal statute and that Congress must have written the law with such an offense in mind.
"The government's argument for implying a continuing offense in this case is at best highly equivocal," Molloy wrote.
However, Molloy denied the motion to dismiss criminal charges eminating from actions since 1999.
In his ruling, Molloy denied Grace's motion:
* To dismiss Count I as duplicitous — charging the defendants with more than one crime;
* To dismiss Counts I through IV bcause the prosectuor failed to identify in the charges that the defendants were aware they were in violation of the Clean Air Act;
* To dismiss Counts II through IV against Stringer, Wolter and Bettacchi for failing to identify breach of an emission standard;
* To dismiss Counts II through IV against Stringer, Wolter and Bettacchi for failing to "sufficiently apprise the defendants of the nature of the offense charged";
Attorneys for both sides argued their cases before Molloy on Feb. 14 in the U.S. District Court in Missoula.
On Jan. 11, Malloy ruled against a Grace motion to change the trial location claiming the media had prejudiced the Montana jury pool.
The Sept. 11 criminal trial is expected to take several months. Federal prosecutors have said they intended to call 233 witnesses and 13 experts.