Government lawyers told an appellate court panel in Seattle on Monday that unless several lower-court decisions are overturned, it will be impossible to properly prosecute W.R. Grace & Co. on charges of concealing for years the dangers of asbestos from a vermiculite mine near Libby, Mont.
The decisions last year by U.S. District Judge Donald Molloy to ban the government's use of scores of documents, studies and testimony of expert witnesses stymied government efforts to bring Grace and seven of its current and former senior executives and managers to trial last September.
For 30 years, Grace mined vermiculite in the hills above the northwestern Montana town. The ore, which expands like popcorn when heated, is contaminated with asbestos. The disease-causing fibers in vermiculite from Libby have been identified by the government as the cause of hundreds of deaths and for sickening thousands more.
The vermiculite was shipped to more than 200 processing and packaging plants throughout North America -- including Seattle, Spokane and Portland -- where it was made into lawn and garden products and attic and wall insulation that the government has estimated is in between 15 million and 35 million homes and businesses.
Before a courtroom packed with about 100 observers, federal lawyers asked the three senior judges of the 9th U.S. Court of Appeals to overturn Molloy's rulings.
The government told the panel that since at least the mid-1970s Grace and its officials "knew, yet deliberately concealed, the devastating health effect that would result from exposure to asbestos."
As a result, the government said, "many Libby residents are dying, or have died already, from mesothelioma, asbestosis and other asbestos-related disease."
Assistant U.S. Attorney Kris McLean from Montana and Todd Aagaard from the Justice Department explained that Molloy's rulings:
Forbid the government from presenting facts and data that came from Grace's own testing of its vermiculite products for asbestos, EPA's asbestos sampling in Libby, and the results of a peer-reviewed government study in which 7,300 people from Libby and surrounding Lincoln County were given chest X-rays and medical interviews. The study found more than 1,300 of those tested had lung abnormalities consistent with asbestos-related disease.
Dismissed the most serious charges of multiple counts of "knowing endangerment." Those would have carried the stiffest sentence. The Clean Air Act states that it is a crime for anyone to knowingly release hazardous pollutants into the air with the knowledge those actions will place another person in imminent danger of death or serious injury.
Accepted Grace's contention that the government has misidentified the specific type of asbestos in its vermiculite. The ore contained tremolite, which is one of six specific asbestos types regulated by the EPA, but also winchite and richterite, which are considered hazardous under the Clean Air Act.
The contention that the form of asbestos makes a difference is what most angers some Libby residents.
"It doesn't matter what they call it. Cemeteries and hospitals throughout the Northwest are filled with people fallen by the asbestos from Grace's vermiculite," said Dr. Brad Black, medical director for Libby's Center for Asbestos Related Disease. "The number of deaths from exposure to whatever is in that ore that I continue to hear about from around the country every week just stuns me, and damn it, I've been doing this for years."
Christopher Landau represented Grace and its officials at the hearing Monday, and he echoed most of Molloy's justification for his rulings and stated the company and its employees had done nothing unlawful.
Landau said that because the government has charged the company and seven of its officials "with unprecedented environmental crimes carrying serious and far-reaching penalties, courts must be especially scrupulous in upholding the rule of law."
Landau told the judges that there are many things that juries are well-equipped to do but "speculating on the scientific definition of asbestos" is not one of them.
Even if the appellate court overturns the district court's decisions, the government could be at a disadvantage because the criminal case will still be tried before the Montana-based judge. The court may require a judge to admit evidence that was banned earlier, but that judge still controls so much of how the trial proceeds that he or she could achieve the same result by different means. On the other hand, if the appellate court doesn't overturn the decisions, the government may be left with a case too weak to prosecute.
At stake is not only this set of indictments relating to the Libby mine but many other potential criminal and civil cases involving asbestos, according to government lawyers. Molloy's rulings could be used as a precedent for those cases.
Grace and its senior people were accused of multiple charges, including criminal conspiracy and knowing endangerment. If the defendants are found guilty, sentences could be 15 years or longer.
When the charges were announced in 2005, the government called it "one of the most significant environmental criminal indictments in U.S. history."
Last June, Molloy raised concerns about whether some of the alleged crimes had occurred beyond the statute of limitations. Within two weeks, McLean brought the evidence before another federal grand jury, which quickly reissued and updated the indictments.
That trial has been tentatively rescheduled for September, but the government is waiting for the appellate court's decision before moving ahead.
The Justice Department had requested the court treat its appeal expeditiously because a government witness and a defendant have died since the trial was postponed. Les Skramstad, one of two activists who fought for years against Grace, died in January, just 11 weeks after being diagnosed with mesothelioma, a fast-killing form of lung cancer attributed to asbestos exposure. A month later, Alan Stringer, a former general manager of the Libby mine who was charged, also died of cancer.
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