UM Grace Case

 At about 3:00 p.m. the government called Ron Anderson to the stand. Anderson was the Lincoln County sanitarian in 1999 when the EPA first responded to Libby. Mr. Nelson did the direct examination of Anderson for the government, asking detailed questions regarding a tour of the Grace export plant and mine on Nov. 16-17, 1999 that Anderson went on.  Mike Ray, a former Grace engineer in charge of reclamation activities, led the tour. The tour began at the top of the mountain at the mine site and ended at the export plant at the edge of town. Ray explained to Anderson that the export plant had been cleaned out by removing all the hazardous material from the buildings prior to hosing them out. At the time of the tour, the export plant was owned by Mel and Judy Burnett, and their company Millwork West was operating on the compound.

The tour of the former Grace facilities was performed in response to media coverage of the dangers of asbestos in Libby. Anderson was looking for exposed vermiculite ore on the tour, and he testified that he was not expecting to find any vermiculite still on the site. To his suprise, Anderson discovered bags of vermiculite concentrate in one of the buildings which were split open and exposed to the air. The bags had a warning label on them that warned that the material inside contained up to 1% asbestos. This prompted him to return the following day and take five samples from two different buildings within the export plant. The government carefully established the chain of possession for the samples, and asked Anderson about the results he obtained. None of the samples exceeded the 1% safety standard, and Anderson testified that while he was not concerned that the export plant was a health hazard because of the low results, the results were inconsistent with Ray’s description of the cleanup.

About one week after the tour, the County Health Board had a meeting to discuss the results with the concerned citizens of Libby. At the meeting, the board prepared a list of areas that they were concerned could be contaminated with asbestos. The day after the meeting, the EPA arrived. Anderson shared his sample results from the export plant with the EPA and served as a liason between the EPA and the county.

On cross-examination of Anderson, Mr. Urgenson of the defense discussed a letter sent by Alan Stringer to Anderson regarding Rainey Creek Road. The letter referenced air sampling data taken from the Rainey Creek Road area, and the fact that Stringer’s sample results showed the exposure levels in the air to be well below the OSHA safety standard of .2 fibers/cc. Urgenson also discussed the vermiculite material Grace had donated to the county landfill to use for composting. Stringer told Anderson the material contained less than 1% asbestos, so Anderson mixed the material in with the compost and distributed it to the community.

Mr. Frongillo also cross-examined Anderson. He established that the export plant was donated to Libby in 1994, and that Anderson had no idea how the bag of vermiculite he found might have gotten there. He also pointed out that the Burnetts continued working in the export plant for nearly a year after Anderson’s tour.

Paul Peronard was the next witness to testify for the government. He has been an On-Scene Coordinator (OSC) for the EPA since 1990, and was the On-Scene Coordinator at Libby from 1999-2002, and again from 2006-2008. The government asked Peronard extensive questions about his educational and training background, but the defense objected when he began testifying about asbestos and Libby because he was not yet qualified as an expert.

The government discussed Peronard’s training in detail for several more minutes, including that he spends at least 30% of his time training other OSCs and teaches college classes about asbestos sampling, but when he tried to testify about the risk Libby residents faced from asbestos exposure, the defense objected that he was not qualified to discuss risk assessment. The objection was again sustained, and defense counsel was allowed to question the credibility and expertise of the witness.

In the examination of Peronard, the defense repeatedly pointed out that the Libby site was Peronard’s first site where asbestos was the primary hazardous substance, and that he had not read any scientific articles on asbestos prior to responding to Libby. Peronard responded that he had done the standard EPA training on asbestos, and that two prior sites he had worked on dealt with asbestos issues that were not primary. Defense counsel had Peronard read part of his deposition testimony from 2002 regarding risk assessment, and the risk assessment dance continued until 5:00 when Judge Molloy dismissed the jury.

After the jury left the courtroom, the prosecution and defense discussed any issues they had regarding witnesses and exhibits. Of note, defense attorney Mr. Spivak brought up his motion to dismiss the Clean Air Act Knowing Endangerment charges against his clients, and Judge Molloy said the motion was denied without prejudice, in essence leaving the door open for further argument. Mr. Spivak requested a limiting instruction.

-Katy Furlong