Libby case goes to trial

MISSOULA - After years of delays, the people of Libby will finally get to face in court a chemical company that is accused of poisoning the town with asbestos.

Opening statements are scheduled for Monday in the case of U.S. v. W.R. Grace and Co. and five of its executives, who are charged with knowingly exposing the residents of the small town to asbestos fibers that have killed hundreds and sickened thousands.

To bring the case against the Columbia, Md.-based company, government lawyers had to overcome legal challenges that went all the way to the U.S. Supreme Court.

"This trial is one of the most complex and creative criminal prosecutions in the history of environmental regulation," said Andrew King-Ries, an assistant professor at the University of Montana School of Law.

The trial is expected to last three to five months.

U.S. District Judge Donald Molloy has placed a gag order on the parties involved, but court documents set the stage.

"The defendants in this case knew the dangers of asbestos they released into the Libby, Montana air, yet they concealed the dangers, putting local residents at risk while enriching themselves," prosecutors said in their trial brief.

Lawyers for W.R. Grace deny there was any conspiracy to knowingly release asbestos, and also contend that most of the releases occurred years before an applicable law was passed in 1990.

"The government has illogically charged that the defendants conspired in 1976 to violate a statute that would not exist for another 14 years," Grace said in its trial brief.

The case has outraged many people in Montana, which has a long history of environmental and economic exploitation by giant corporations that extracted wealth while leaving behind their messes. Many are impatient with the delays that Grace has sought through numerous appeals.

"Folks in Libby have suffered long enough," U.S. Sen. Jon Tester, D-Mont., told The Associated Press. "It's well past time for the wheels of justice to get rolling."

Libby is a town of about 2,600 people in a forested valley of the Cabinet Mountains. This is isolated country, far from major population centers. Lawyers for Libby residents contend the pollution has killed some 225 people and sickened about 2,000 in the area.

Kristine Paulsen, a Libby native who wrote her master's thesis on how townspeople are coping with the pollution, said many locals are unsure how to react to the start of a trial that is expected to last for months.

"They want to get their hopes up, but they've gotten their hopes up so many times it is hard to do any more," Paulsen said. "The things that happened to these people are just so terrible."

Mining for vermiculite near Libby began around 1920 and continued until 1990. The mineral was mined from Zonolite Mountain and could be processed into commercial products used for plumbing insulation, fireproofing and gardening. Zonolite brand insulation is present in some 35 million homes in the United States.

The problem is that the vermiculite taken from the Libby mine was contaminated with naturally occurring asbestos mineral fibers, which can be inhaled into the lungs and can cause mesothelioma, asbestosis and lung cancer.

The ore made its way into homes on the clothes of miners. It was also taken to processing plants in Libby, one of which was located next to a baseball field. As much as 24,000 pounds a day of dust was released from the mill smokestack. Asbestos-contaminated mine tailings were used to build running tracks at local junior high and high schools, and lined an elementary school skating rink.

After news reports in late 1999 led by the Daily Inter Lake and Seattle Post-Intelligencer revealed health problems, the EPA sent an emergency team to Libby to begin collecting information about asbestos contamination. The town became a Superfund site in 2002

"There were visible flakes of vermiculite everywhere," said Dr. Charlie Weis, an EPA toxicologist, at a recent pretrial hearing.

The legal issue is whether W.R. Grace, which bought the mine in 1963, and its co-defendants knew of the health risks associated with the mine for years before federal regulators arrived. The government contends the company and some of its managers conspired to hide health risks from its workers.

In addition to Grace, the defendants include retired executives Henry A. Eschenbach, Jack W. Wolter, William J. McCaig, Robert J. Bettacchi and Robert C. Walsh. All face up to 15 years in prison and fines totaling millions of dollars. They are free on their own recognizance.

Company attorney O. Mario Favorito has been severed from the case and will be tried separately because nearly all of his conduct is protected by Grace's attorney-client privilege, Molloy has ruled. Former mine manager Allan Stringer originally was indicted, but has since died.

A federal indictment unsealed in February 2005 charged Grace and its former executives with violating the federal Clean Air Act and obstructing an EPA investigation into the asbestos contamination.

In 2006, Molloy made a series of rulings that disallowed some evidence and witnesses, sharply damaging the government's case. Prosecutors appealed and the 9th U.S. Circuit Court of Appeals reversed Molloy's decisions and restored key portions of the indictment.

Grace appealed to the U.S. Supreme Court, which last June refused to overturn the 9th Circuit and sent the case back to Molloy.

The appeals court instructed Molloy to consider if the contested evidence was 'reasonably reliable" to a scientist. It also allowed prosecutors to present witnesses and testimony dating to 1976, the time the government contends Grace and its executives knew about the health hazards.

Grace and some of the executives also are charged with knowing endangerment for providing contaminated material to the community for various uses such as the running tracks. Grace also is charged with obstruction of justice for hampering EPA's assessment and cleanup efforts.

Lawyers for W.R. Grace contend the Clean Air Act's knowing endangerment provision was enacted on Nov. 15, 1990, while prosecutors are seeking to punish the company for actions dating back to 1976.

"If there is no substantive federal offense, there can be no conspiracy," Grace argues.

On the Web:

University of Montana live trial blog: http://blog.umt.edu/gracecase