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Trial turns to cleanup issues

by Josh Benham & University of Montana
| April 14, 2009 12:00 AM

The marathon environmental trial against W.R. Grace & Co. continued this week with the latest testimony turning to Libby High School’s track and mine cleanup.

On Monday afternoon, former Grace employees took the stand to answer questions on those issues. Special attention was devoted to the destruction of the old dry mill in 1991 and tests performed on Libby High School’s track.

An environmental engineer in charge of the dust sampling operation, Randy Geiger, was responsible for testing of the track which consisted of vermiculite materials donated by Grace. In 1981 Geiger, along with his wife, attempted to “simulate activity on the running track” by running and “kicking up the ground.”

“I can remember putting on my track shoes, from my high school days, and we tried to simulate two runners,” Geiger said.

The test results were then sent to a lab technician in Libby. The lab, according to Geiger, was a “place that we could actually do the analysis, calibrate our pumps, and it was a clean environment.”

Geiger said the data was “used to potentially make improvements in the future.”

In between Geiger’s testimony Judge Donald Molloy stopped court to clarify what the witness’s statements meant to the jury.

“This evidence only goes to the question of whether or not there may have been a level of misrepresentation,” Molloy said. “This is not evidence of a release that would endanger.”

On cross-examination, defense attorney David Krakoff asked about the involvement of his client – Henry Eschenbach – in the tests. Geiger said that Eschenbach helped get the lab started. Krakoff said that asbestos levels in the air at the mine were dropping already by 1976, even before Geiger started working there. 

Geiger confirmed the validity of documents dating from an Eschenbach visit to the mine that stated the levels were continuing to decrease.

Leroy Thom, a former Grace mine worker, was hired in 1974. He worked in the loan department, which meant he was loaned out to whatever mine department needed help. In 1990, he was a foreman in the dry mill’s destruction.

“I had a crew that worked with me in tearing down the old mill.  We would do all the crane work,” Thom said.

He was also involved in taking down the screening plant, where his crew “removed all equipment out of the building, then off the top of the silos where the ore was stored.”

Thom testified he saw people pick up vermiculite at the screening plant down by the river, then take it to places such as their lawns and gardens. The prosecution questioned Thom on whether or not he saw workers leaving the job site with dust on their clothes.

“Oh yeah, all the time, every day. All the guys that worked there had dust on their clothes,” Thom said.

Earlier in the day, EPA chemist Mary Goldade’s testimony ended. Goldade, who is both a government witness and a technical expert advising the prosecution on matters of scientific testing, helped the prosecution prepare a number of exhibits for the case before the trial began.

Defense attorney David Bernick reviewed a litany of government exhibits he claimed had been created by picking and choosing data from EPA reports, and e-mails to or from Goldade indicating that she had provided advice on litigation strategy – as opposed to purely technical or scientific analysis – and describing a certain data-set as “cherry-picked samples.”

Bernick repeatedly characterized Goldade as having worked “hand-in-glove” with the prosecution in their preparation for the trial, calling into question her independence and reliability as a witness.

On the issue involving Robert Locke’s continued involvement in the trial, Molly dismissed the jury to discuss the matter.

Locke started working for Grace as director of marketing for building products in 1986, and advanced to global vice president for the construction division in 1992. He left the company in 1998 and has since filed suit against Grace for “unfair treatment.”

He took the witness stand for a week in late March, but his testimony came under scrutiny after he recalled details of a conversation he had previously claimed, under oath, never took place. A motion was made to strike Locke’s testimony, but Molloy has so far allowed it to stand.

The question of whether Locke committed perjury remains open.

Statements made by Molloy and Bernick indicate that the defense will have the opportunity to conduct a major inquiry into the Locke issue and the “extent of the taint in this case,” on Friday.

The hard-drive from Locke’s personal computer may be subjected to forensic analysis to determine whether Locke deleted any correspondence germane to the case, and Locke himself may well be called back to the stand.

In the late afternoon, three defense attorneys asked Molloy for all the prosecution’s information about the government’s interactions with its witnesses in an effort to uncover any governmental flouting of the rules.

The controversy was raised when Locke admitted on the stand to refusing an offer of immunity from the government. The defense claims the government should not have made such an offer.

“We don’t know how much of this case is affected. We can’t adopt blinders and say that since all we know about is Mr. Locke, then that is all there is,” Bernick said. “Mr. Locke did not hijack this case without assistance. The government embraced Mr. Locke.”

After the defense finished their arguments, Molloy asked the prosecution for any comments. Prosecution attorney Kris McLean replied that the government was in the process of complying with subpoenas and orders and promised to show the court the whole picture on Friday.

Molloy had little to say to the prosecution after often having warned them about their case. He just recessed the court until Tuesday morning.

(University of Montana journalism students Laura L. Lundquist and Daniel Doherty contributed to this story).