Drawing lines in the air
Distinction between ambient air and indoor air shapes case
By Kyle Lehman
Grace Case reporter
If the legal distinctions governing the prosecution of W.R. Grace spilled out of the courtroom and applied to the community of Libby, Mont., the town’s calm mountain air would be split neatly into two distinct parts, indoor and outdoor.
Of the thousands of government tests taken in Libby since asbestos was recognized as a health threat to the community, the government team prosecuting W.R. Grace for knowingly spreading the dangerous mineral can only use results taken from the ambient, or outdoor, air. This important distinction is due to the prosecution’s use of the Clean Air Act to spearhead their criminal case against the chemical company.
“The Clean Air Act knowing endangerment charges are the heart of the Grace Case,” said David Uhlmann, a law professor at the University of Michigan. “The knowing endangerment charges highlight how Grace and its senior management put Grace employees and the citizens of Libby in such peril.”
But the use of the Clean Air Act has not been without contention. In 2006, attorneys for the defense filed a motion to exclude evidence related to indoor releases, citing the Clean Air Act’s knowing endangerment provision which states that only releases into the ambient air can be considered a violation of the act.
Judge Donald Molloy ruled in favor of the defense, acknowledging this distinction and in doing so arming the defense with two powerful objections. Federal Rule of Evidence 403 prevents the use of evidence that is misleading to jurors and Federal Rule of Evidence 402 limits testimony that is irrelevant to Clean Air Act violations.
These objections were used to limit the testimony of expert witness Paul Peronard, whose descriptions of soil samples were allowed only under the condition that the jurors did not consider them releases into the ambient air. According to Attorney William Pedersen, who served as the EPA’s Associate General Counsel for Air and now works in private practice, the Act is explicitly clear in what defendants can be held liable for.
“By the EPA’s definition [ambient air] is air outside of buildings to which the general public has access,” he said. “It’s an absolutely established part of the law.”
Molloy’s ruling did not limit all indoor tests however, and allowed for the use of Grace’s historical indoor tests because they have the potential to show company officials had knowledge of the danger posed by asbestos. The ability to show that Grace officials were aware of this is relevant to the conspiracy and obstruction charges. In his ruling on the matter, Molloy described the importance of these tests, but stressed their limited scope.
“If admitted the evidence will be accompanied by a limiting instruction telling the jury to consider the evidence only as it relates to the crimes charged in the conspiracy and obstruction counts, and that the jury may not rely upon any indoor release to support a guilty verdict on the Clean Air Act Counts.”
Another clarification on the matter of indoor verses ambient air came down from the Ninth Circuit Court in their partial reversal of Molloy’s original ruling. The court ruled that expert witnesses should be allowed to reference indoor tests when forming their professional opinions. According to Uhlmann, expert witnesses are not held to the same standards as jurors and are allowed to consult whatever evidence they deem appropriate when forming opinions.
“Expert witnesses are entitled to review prior studies and reports that they believe would be helpful in formulating their expert opinions,” he said. “[The district court] was wrong to limit what expert witnesses could consider.”
Uhlmann said that because of this ruling, indoor testing evidence will likely surface in the form of advising expert opinion rather than direct evidence for the jury to consider. Legal distinctions such as indoor verses ambient air, and the subtleties of the Clean Air Act are just another part of what makes this case so complex, Uhlmann said. Despite the limitations placed on indoor testing, Uhlmann said he thinks the government still has a solid case.
“I don’t think the exclusion of evidence from indoor testing hurts the government,” he said. “They have plenty of evidence that asbestos was released in Libby, and that those releases placed the citizens of the town in harm’s way, and that the defendants knew what might happen to anyone who was exposed to the asbestos.”