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More appeals filed in Grace criminal case

| October 6, 2006 12:00 AM

By BRENT SHRUM Western News Editor

With trial a year or more away, federal prosecutors are filing additional appeals in their criminal case against W.R. Grace.

The trial against the company and several of its officials was initially scheduled to begin on Sept. 11 but was postponed after the prosecution appealed several rulings by Judge Donald Molloy of the U.S. District Court in Missoula. At issue were Molloy's decisions to throw out the "knowing endangerment" portion of the conspiracy charge against the defendants, to exclude government asbestos sampling and analysis as evidence based on discrepancies between the asbestos contamination found in vermiculite mined near Libby and the Clean Air Act's regulatory definition of "asbestos," and to allow the defendants to present a defense of being in compliance with Clean Air Act "visible emissions" standards.

Molloy vacated the trial date and advised attorneys for both sides to be available for trial between September 2007 and February 2008.

Last week, the prosecution filed notice of appeal on the following additional issues:

* An order filed Aug. 28, 2006, excluding evidence of or derived from indoor releases.

* An order filed Aug. 29, 2006, excluding the government's proposed expert testimony regarding W.R. Grace's "historical testing."

* An order filed Aug. 30, 2006, excluding evidence of and expert testimony relating to a study conducted by the Agency for Toxic Substances and Disease Registry.

* An order filed Sept. 5, 2006, excluding evidence regarding soil sampling.

* An order filed Sept. 18, 2006, excluding expert opinions regarding imminent danger based upon Environmental Protection Agency risk assessments.

W.R. Grace and individual defendants Alan Stringer, Henry Eschenbach, Jack Wolter, William McCaig, Robert Bettachi, Mario Favorito and Robert Walsh were indicted by a grand jury in early 2005 on charges of conspiring to violate the Clean Air Act and endanger others by knowingly releasing asbestos into the air as well as conspiring to defraud the government by impeding the efforts of regulatory agencies.

Earlier this year, Molloy dismissed the "knowing endangerment" portion of a conspiracy charge on the grounds that the five-year statute of limitations had expired. Federal prosecutors had argued that the defendants' actions after 1999 furthered both the defrauding and endangerment portions of the conspiracy. A new indictment, issued on June 26, added language to that effect, but that indictment was also dismissed by Molloy on grounds that it did not meet statute of limitations requirements.

The trial of Grace and five of the individual defendants had been scheduled to start this year, while a second trial for Stringer and Favorito was to start next March. Molloy had granted requests from Stringer and Favorito to be tried separately from the other defendants on the grounds that evidence to be presented in their defense might result in prejudice against Grace. He also found that they could be tried together without risking prejudice against one another. The other defendants had made similar requests for separate trials, but those were denied.