UM Grace Case

  Mr. Frongillo, representing Robert Bettacchi, finished up the cross-examination of Paul Peronard this morning with a flourish, and Mr. Cassidy began his redirect with that same topic: the millions of documents produced in response to the 104(e) request the EPA made to Grace.

In a line of questioning that appears to relate to the conspiracy to defraud the government and the obstruction of justice charges, Mr. Frongillo took the witness, and the jury, through a series of monthly memos from the summer of 1993 detailing work to be done to close the Libby mine. (Defense Exhibits 15033, 15034, 15035) . Beginning with Government Exhibit 607, a “To Do” list for closing the Libby mine, Mr. Frongillo noted one of the items was to clean up the vermiculite piles at the screening plant.  The subsequent memos illustrated the progress being made.  In June 1993, the piles had begun to be hauled back up to the mine.  In July 1993, there were “considerable Euclid loads” being taken back to the mine for burial.  (A Euclid load, I learned, is a reference to a dump truck – the smallest Euclid truck holds about 15 tons according to Peronard; we do not learn, however, what size Euclid was used in Libby).  By August 1993, the Libby update said the only major task remaining was removing the suspension cables across the Kootenai River. 

With the groundwork nearly complete for his ultimate point, Mr. Frongillo asked Peronard about the investigation, now nearly a decade old.  Peronard reviewed the intense investigation, the piles of documents, the interviews he had given and taken with various individuals and agencies.  Coming to his point rather firmly, Frongillo asks whether in these millions of pages or years of investigation Peronard had found even a single document that said Mr. Bettacchi has ever released a single fiber or endangered anyone?  Predictably, Peronard did not give a categorical “No” answer and said instead that he had never looked at the documents with an eye to that question.  Coming at his point again, Frongillo asked Peronard whether any document or any information showed that Bettacchi had ever directed releases of a single fiber in Libby, Montana.  Peronard gave another qualified answer: “Not in the way you stated it.”

These questions seem to be addressing the Clean Air Act charges, in which the government must prove that the defendants knowingly released asbestos into the ambient air. 

Upon re-direct of Peronard, Mr. Cassidy began to rebut an earlier argument of Mr. Bernick, defense counsel for WR Grace.  Bernick had suggested that requests for production from the EPA as for the memories of the defendants and other WR Grace employees.  Cassidy asked Peronard to explain why the document production was so important to his management of the site clean-up.  Although his questioning was interrupted by the noon recess, it appeared that Cassidy would be preceding to ask Peronard about requests of WR Grace that were directed at memories of employees and corporate records. 

After Judge Molloy dismissed the jury for lunch, the government argued that defense counsel, particularly Mr. Bernick, had “opened the door.”  “Opening the door” means that counsel’s questioning went into a prohibited area and, therefore, the other side should be able to ask questions about the prohibited area as well.  Earlier, Judge Molloy had limited Peronard’s area of expertise to emergency response management and prohibited the government from questioning him as a scientific expert.  Judge Molloy disagreed with the government.  Judge Molloy felt that Bernick was careful to avoid forbidden areas and had not opened the door allowing Peronard to discuss scientific concentrations.  According to Judge Molloy, Peronard can discuss the concentration, or more aptly described, clusters of red dots showing detection of asbestos; he may not discuss what the concentration of asbestos is for a particular red dot. 

– Kirsten Madsen (posted 2:10 p.m.)