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Grace trial begins in Missoula

by Carly Flandro & Kyle LehmanUniversity of Montana
| February 25, 2009 11:00 PM

Editor’s Note:  The Western News is reporting on the case against W.R. Grace & Co. through the University of Montana’s School of Journalism and School of Law. Reporters contributing information to the story in this edition included Carly Flandro, Kyle Lehman, Laura L. Lundquist, Josh Benham, Elizabeth Diehl and Chris D’Angelo along with Andrew King-Ries and Christopher Orman from UM’s School of Law. For their coverage, go to: blog.umt.edu/gracecase .

The federal environmental case against W.R. Grace & Co. and five executives got started on Monday morning in Missoula with opening statements from the prosecution and defense.

During the morning session, government attorney Kris A. McLean used Libby High School’s track as an example of how asbestos-contamined ore enveloped the community. McLean told the jury that every time a high school runner struck the surface of the track, asbestos could have been stirred into the air and inhaled by the young athletes.

A study done at the high school track proved that the impact of two runners raised “surprisingly high levels of asbestos,” McLean said.

McLean told the jury that W.R. Grace knew the dangers that existed but didn’t inform other people outside of their company.

During the trial, many people will share stories like those with the jurors, McLean said. Those people, he said, will include scientists, Libby residents, small-business owners, doctors and government employees.

In the mid to late 1980s, McLean said the “gathering storm of liability (from Libby residents) and the likelihood of increased government regulation” for the asbestos industry motivated W.R. Grace executives and top employees to develop an exit strategy.

That exit strategy included plans to tear down old plant buildings, sell the vermiculite mine and donate buildings and land to the town of Libby.  Each part of that plan would put more people in danger of asbestos-related disease, McLean said.

Workers who tore down the old plant buildings, some of which were used exclusively for processing vermiculite, were exposed to a great deal of asbestos and wore their contaminated clothes home, bringing the danger to family members. The land W.R. Grace donated to Libby was used as a baseball field. When the land was given away, it still had piles of contaminated vermiculite on it, McLean said.

“Libby residents will tell you (those piles were) fun to play in,” McLean said. “They’ll tell you how their little brothers would be over playing in the vermiculite while they played baseball.”

W.R. Grace tried to sell the mine site and remaining buildings to other large companies, such as 3M. However, most large companies were wary of the possible liabilities from Libby residents that could come with the purchase.

So, W.R. Grace tried to sell the mine to a “less sophisticated, smaller entity,” according to McLean.

That small business ended up being the locally-owned Kootenai Development Corp. Two small Libby business owners also bought land and buildings from W.R. Grace.

Mel Parker was one of those business owners, who thought the land would be perfect for the gardening company he and his wife, Lerah, hoped to create.

“The Parkers moved their family onto the site and made the business of their dreams. They’ll describe all that for you,” McLean said. “They will also tell you, unfortunately, that they have been diagnosed with asbestos-related disease.”

McLean said the jury will also hear from the Environmental Protection Agency emergency response team that first investigated media claims about the Libby asbestos problems. Dr. Alan Whitehouse, who has a clinic in Spokane, will also tell the jury about the Libby patients he has examined.

In addition to testimonies, McLean said paperwork will also support the U.S. government’s charges against W.R. Grace.

In April 2002, W.R. Grace wrote a letter to the EPA saying it was reasonable to believe that the asbestos-contaminated vermiculite that was used in attic insulation would not cause serious health problems, though, allegedly, company officials knew otherwise.

“They were still trying to keep that secret that was developed back in 1977,” McLean said.

Defense’s Bernick addresses jury

During the afternoon session, attorney David Bernick got into the defense’s opening statement by urging jurors that they must consider what exactly the defendants knew at the time people were exposed.

Bernick acknowledged that people have gotten sick in Libby, but was quick to point out that in order for criminal charges to be brought against Grace executives, it must be proven that they were aware of the danger at the time workers were exposed to asbestos.

Given the long latency period for asbestos-related diseases, Bernick said that many were exposed before Grace took over operation of the mine.

“By 1963 when Grace took over the die was cast,” he said, adding that exposure levels were much higher under the former operator.

After Grace took charge of the mine, Bernick said that steps were taken to reduce levels of exposure and remain in compliance with federal safety regulations. According to Bernick, Grace not only improved the safety of its operation but was commended by officials.

“The evidence will show that inspectors and regulators praised Grace,” he said.

Bernick said that the jurors must consider that the EPA’s own system for evaluating the risk of exposure, a system that he said did not find significant hazards in Libby. Because the EPA did not fully understand the problem, Bernick said that it would be unreasonable to bring charges against a company that was in compliance with their regulations.

“The EPA’s own quantatative risk assessment says that the risk was acceptable,” he said.

Bernick said that not only did the EPA fail to understand the risk in Libby, but ran a cleanup project that Grace officials found poorly executed.

The government’s charges of obstruction stem from Grace’s purchase of the old mine site and its refusal to allow the EPA onto the site, but Bernick contended that this was nothing more than an expression of their dissatisfaction with the cleanup.

Bernick said that Grace wanted to sit down with federal officials and discuss the cleanup before allowing them back onto the site, not consciously obstruct their efforts.

Bernick finished before the court’s afternoon recess, again urging jurors to look hard at the evidence and consider the complex nature of exposure and diagnosis before deciding who is at fault. He asked jurors to keep in mind the latency period for diseases like asbestosis and mesothelioma, and said that officials had to have known that their actions were hazardous at the time of exposure, not the time of diagnosis.

“The exposure is long before the actual diagnosis,” he said.

Jury sworn in Friday; Peronard discussed

A jury of seven men and five women were seated on Friday and although not sequestered, they were instructed to avoid media coverage of the trial. Three alternates were also chosen.

Grace and the executives face conspiracy charges revolving around violations of the Clean Air Act and obstruction of justice. Among the charges is that the five executives knew they were endangering Grace employees as well as Libby through the operation of its vermiculite mine.

The original indictment included a sixth defendant, company attorney O. Mario Favorito. Molloy ruled that his conduct is protected by W.R. Grace’s attorney-client privilege and will be tried separately. A seventh defendant, mine general manager Alan R. Stringer, died in 2007.

Just before court was dismissed on Friday, conflicts involving the Environmental Protection Agency’s Paul Peronard, the former on-site team leader of the cleanup in Libby. The defense claimed that Peronard could not be allowed in the courtroom because he was not considered to be an expert but just a factual witness.

According to the defense, Peronard should be excluded because asbestos sampling and formulaic analysis are not scientific but factual. As a result, the defense believes Peronard’s knowledge does not fall under expert.

Judge Donald Molloy ruled that Peronard could remain in the courtroom.

“Peronard is designated as an expert by the government,” Molloy said. “He is an expert. He gets to come in.”

Besides the Peronard discussion, lawyers also discussed with the judge the use of a chart that was created to help jurors understand the trial’s facts and evidence. The defense felt that the use of the chart at the beginning of the trial would not allow the jury to remain impartial.

In addition, the defense was concerned with the chart’s color coding, language and what evidence was included and excluded on the chart.

Defense attorney Thomas Frongillo argued that in an attempt to help the jury, the court had instead “collapsed” the evidence.

Molloy responded by offering reassurance that the chart was “not the authority,” but offered simply to help the jurors “conceptualize” the allegations and evidence.