UM Grace Case

Tuesday morning started with Mr. McLean ’s address against the Defense arguments in favor of their Rule 29 motion. Judge Molloy indicated he had decided on a remedy for Mr. Locke’s testimony, but would wait until the end of Mr. McLean’s argument before ruling.

Mr. McLean spent the next 90 minutes establishing what the government had proven  in terms of evidence against the Defendants on the conspiracy charge. The standard of review for a Rule 29 motion is viewed in the light most favorable to the government, which essential means to give the government’s version more weight and less doubt then would be needed for a verdict or other type of ruling. Mr. McLean utilized a timeline that cited documents already in evidence in the case to show that “any rational juror would find the evidence sufficient beyond a reasonable doubt” to support the charge. According to Mr. McLean, the elements  for conspiracy require 1)an agreement between 2 or more, 2) to defraud the EPA and/or knowingly endanger the people of Libby, and requires 3) one overt act in furtherance.

Mr. McLean started his presentation by stating that this case is “quite simply about right and wrong.” He stated that the government has proved 82 of the 100 overt acts charged. He said that the Defense claims that their motive was business- to make profits and avoid liability. However, he argued that these motivations caused these Defendants to step over the line into criminal culpability, and that he would spend the next two hours showing this intent through previously admitted documents.

The documents and timeline cleanly made a record beginning in 1971 that showed Grace’s familiarity with the potential and also apparent health hazards associated with tremolite.  These included:

• 25: A 1976 memo from unindicted co-conspirator Vining noting the hamster study and stating “of primary concern is the potential health hazard to Grace personnel both at Libby and at the vermiculite expanding facilities.” Mr. McLean argued this showed the company’s history of fending off future government actions by keeping the study within the company.
• 76: A letter to Defendant Wolter about  instituting a no smoking program, but which Mr. McLean also argued indicated exposure to the people in town.
• 57A: The notorious “decision tree” which indicated that lawsuits, including a class action suit by the townspeople, and possible criminal action, was discussed by Grace executives in 1977.
• 86: 1977 information on the salting project that showed that it wasn’t possible to reduce the content low enough so it wouldn’t release asbestos, and that even tiny amounts still released fibers.
• 228A: A 1980 letter from Defendant McCaig urging the importance of having employees to use the a/c in their vehicles, which showed that Rainey Creek Road was a source of exposure.
• 266: A letter to MSHA that copied Defendants Wolter, McCaig, and Eschenbach , stating that a the proposed NIOSH testing in Libby was a “wasteful government expenditure.”
• 271: Authorization for a shop order signed by Defendant Wolter to resurface the high school track because of exposure, but which Mr. McLean argued  had no indication of telling the school about the dangerous situation.
• 290: A statement instructing employees to use vacuums, not brooms, to clean up mine materials. Mr. McLean stated  “but we know 15 years later that’s what the Parkers were doing several times a year, using brooms, and no one told them that was a problem.”
• 333: A letter from Eschenbach to the EPA stating that the products as manufactured “do not create a substantial risk.” Mr. McLean asked “How can he honestly say that” and then  noted the knowledge of the hamster study and Monson report, which clearly conflicted with Eschenbach’s representation that Grace lacked sufficient medical and personal  history to make a judgment on the cause of the illnesses. “This is the plan in action” according to Mr. McLean.
• 484: Eschenbach to all Defendants with results of Libby employee’s chest x-rays and health report, including those hired after installation of the wet mill.

Mr. McLean then moved  on to 1999, when the EPA started their investigation, especially Paul Peronard’s testimony.  Mr. McLean noted that Grace continued to  “deflect and delay” and that the Defendants had a “need to continue hiding the ball,” otherwise the endangerment was going to be discovered.

• 629B: Stringer’s statement to the Libby community in 2000 which stated he knew there was a health problem associated with asbestos for both employees and their families when the mine and mill were operating.
• 640: A 2001 Grace letter to the EPA stating that prior to the news coverage, the company had no reason t believe there was a continuing problem in the community. Mr. McLean noted that this was the same company line, and that the company could not tell the truth because of substantial liability and possible criminal liability, forecasting that “the decision trees were coming true in 2001.”

Mr. McLean then turned the podium over to Mr. Cassidy for the government’s remaining 30 minutes.  Mr. Cassidy focused on Counts 5-8, the obstruction charges,  relying on Peronard’s testimony and other communication from Grace in the superfund investigation. He relied on the answers Grace provided in Exh. 628B, the 104E responses, which hindered Peronard’s investigation by focusing on employees instead of looking to the community for presence of asbestos. He noted that it took Peronard until 2001 to discover the risk at Plummer school, and that Peronard learned about the overwhelming contamination throughout the town through anecdotes, not Grace. Mr. Cassidy argued that Grace tried to minimize and omit information in order to limit the scope of the investigation.

Mr. Cassidy then addressed the releases and exposures by noting the testimony from the Parkers, the public use of Rainey Creek Road, and kids Peronard saw in 1999 playing in dust at the ice rink. He noted that the risk of disease increases as exposure increases, and that the cumulative exposure, as the Parkers received, was important because of their presence at the site until 2000.

At this point Judge Molloy stopped the argument for time, and issued his ruling on Locke and the Prosecutorial Misconduct charge. Molloy stated he had struggled considerably with Locke, but was not going to grant the Motion to Dismiss. He then ruled that Locke was to be recalled for a very limited cross examination by the Defense, with an instruction to the jury to disregard any of his prior testimony against defendant Bettacchi. The government will not be allowed to redirect Locke.

Hannah Stone

Posted 6:30 pm