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Defense witnesses argue against Grace conspiracy

by University of Montana & Will Grant
| April 30, 2009 12:00 AM

Defense lawyers spent the latter half of Wednesday morning attempting to disprove that W.R. Grace & Co. conspired to conceal the dangerous nature of Libby vermiculite.

During the federal trial in Missoula, the defense tried to show through the questioning of four witnesses that Grace took action to monitor and reduce workplace dust, that company executives weren’t afraid to take their families to the mine, which they wouldn’t have done if they had known the dangers of breathing Libby dust, and that a copy of an environmental assessment was sent to Mel and Lerah Parker, who bought former Grace property.

Randy Geiger, the engineer and overseer of Grace’s air quality tests, testified that Grace took a series of steps to reduce workplace dust. Dust mitigation efforts were directed at different stages of processing the ore and at different locations on the mine property. Ventilation was a primary concern, Geiger said, and the company installed air filters and ducts to give workers cleaner air to breath.

On cross-examination of Geiger, prosecuting attorney Kris McLean suggested the ventilation was ineffective.

“Are you familiar with the phrase ‘the solution to pollution is dilution’?” McLean asked Geiger.

Geiger said he knew the phrase, and McLean said the ventilation system was nothing more than diluting the air. But Geiger said there was also filtration of the air. Outside air was brought in, dusty air was emitted outside the workplace and outgoing air was filtered, Geiger said.

Defense attorney Walter Lancaster was brief in his redirect examination of Geiger and sought only to show that Grace’s dust controls were effective and made the workplace safer. Lancaster referred to test results that showed acceptable levels of fiber concentrations.

“All the numbers (fiber concentration levels) are a fraction of PEL’s (permissible exposure levels) and internal goals, isn’t that right?” Lancaster asked Geiger.

“Yup,” Geiger said.

The defense then called Mike McCaig to the stand, son of former Grace manager and defendant in this case, William McCaig. Mike McCaig is a computer programmer from Simpsonville, S.C. He grew up in Libby and graduated from Libby High School in 1989.

Through Mike McCaig’s testimony, the defense showed that William McCaig brought his family up to the mine, used mine products in the family garden and wouldn’t have done so had he known the health risk of breathing dust from the contaminated vermiculite.

Defense attorney Elizabeth Van Doren Gray also wanted to know about Mike McCaig’s high school experience. McCaig said he was on the football team and played in the school marching band. Van Doren Gray wanted to know how he could play on the team and in the band at the same time.

“I’d have to run to the locker room, pull off my shoulder pads and run back out on the field,” McCaig said to the bemusement of the court.

“Did this happen every game?” Van Doren Gray asked.

“Every game when the band had to play,” McCaig said.

The defense also called Dale Cockrell to the stand, who testified earlier in the trial. Cockrell is an asbestos lawyer from Kalispell and represented Kootenai Development Corp. in the sale of former mine properties.

Defense attorney David Bernick questioned Cockrell about his interaction with the Environmental Protection Agency. Cockrell said EPA promised him immunity from liabilities associated with the mine in exchange for using the mine as a dump site for contaminated mine products and tailings.

But Bernick pointed out that this agreement never came to fruition and that EPA didn’t hold up its end of the bargain. Cockrell agreed that the agreement was never finalized and that KDC stock was sold to Grace. Bernick also noted that EPA recommended the sale and looked forward to working with Grace.

The defense’s final witness of the morning was Patrick Platenburg of the Montana Department of Environmental Quality. Platenburg began working for the DEQ in 1995 and worked for the Department of State Lands from 1987-95. He was involved in the 1993 draft environmental assessment of cleaning up the Libby mine site.

He testified that Libby resident and owner of former mine property, Mel Parker, was concerned about cleanup of the mine site and his property. Mel and Lerah Parker bought property that was the former Grace screening plant and full of contaminated vermiculite tailings. The prosecution claims that Grace failed to disclose the health hazards the Parkers faced.

Bernick presented a document from 1993 that acknowledged a phone conversation between Platenburg and Parker, and asked how Platenburg responded to this conversation. Platenburg said he sent a copy of the draft environmental assessment to the Parkers.

Platenburg’s testimony rebuts the prosecution’s charges of knowing endangerment, Count III of the superseding indictment. The prosecution charges that Grace put the Parkers in imminent danger when the company sold them the ex-screening plant.

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