UM Grace Case

Prosecuting attorney Erik Nelson started the morning session with the direct examination of Witness Frank Kover, a retired EPA employee. Nelson led the witness through a series of communications between W.R. Grace and the EPA, beginning in April of 1983.  Government exhibit No. 340 was introduced without objection and the evidence asked W.R. Grace for additional information on past and present tremolite exposure of workers.  W.R. Grace responded in May of 1983 that it needed more time to compile the necessary information, especially time to define the scope of several studies of workers in Libby.

Kover testified that W.R. Grace believed it had submitted all of the required information, especially when the company sent the EPA the results of the McGill University on March 4, 1986.  However, this study did not relate to “present” tremolite exposure. After this line of questioning was over, Nelson turned Kover over to the defense.

Defense attorney Bernick began his cross-examination of Kover by asking how many times Kover had met with the government in anticipation of this present prosecution.  Kover had met with the government three times, twice to go over specific documents which he would be called to testify on, and once when the subpoena was delivered to his house in 2006.

Bernick established through Kover that the various arms of the government were required to coordinate, including the EPA and other agencies like OSHA and  NIOSH.  Kover testified that W.R. Grace dealt continually with a wide variety of agencies at the time. Bernick used this testimony to show it was not an issue of conspiracy or fraud, but rather the right hand did not know what the left hand was doing.

Bernick continued his cross-examination on the reporting requirements of the Toxic Substances Control Act of 1976.  The Act required W.R. Grace to report and keep records relating to chemical substances and mixtures.  Section 8(e) states:

“Any person who manufactures, processes or distributes in commerce a chemical substance or mixture and who obtains information which reasonably supports the conclusion that such substance or mixture presents a substantial risk of injury to health or the environment shall immediately inform the [EPA] Administrator of such information unless such person has actual knowledge that the [EPA] Administrator has been adequately informed of such information.”

Kover testified the reporting section required judgment, which some companies lacked.  Bernick introduced two evaluation sheets completed by Kover, which were “corporate dumps.”  The companies, neither of which were W.R. Grace, gave the EPA too much worthless information.  Although Nelson objected to both exhibits on relevance, Judge Molloy overruled both and the evaluations were introduced into evidence.

Kover further testified the reporting scheme became a problem because either companies reported too much or did not report at all.  With that testimony, the morning session concluded.

– Maggie Braun (posted 1:45 pm)