March 3, 2009
Day 8: Posts for the eighth day of the trial. Read from the bottom up.
Cross Examination of Mel Parker Begins
Government prosecutor Kris McLean continued his direct examination of Mel Parker at 3:15 p.m. Parker testified that from early spring of 1995 through fall of 1997, fifteen to twenty logging trucks per day kicked up large amounts of dust while driving down Rainy Creek Road near his property. The Parkers’ property was Grace’s former screening plant. The dust accumulated on his property, prompting Parker to ask Lincoln County to water down the road to limit the dust. Parker called the county because he believed it owned the stretch of road near his home. Parker stated that Rainy Creek Road has been closed to the public since late 1997 and few cars drive on it now.
Parker testified that he did not know his property might be contaminated with asbestos until reading articles in The Daily Inter Lake and Seattle Post Intelligencer in November 1999. He met with Peronard from the EPA on November 23, 1999, and showed Peronard around his property. Peronard returned soon after to take samples from the Parker’s property. Alan Stringer, a Grace representative, came to Parker’s home around December 1, 1999, and told Parker he had read the articles and “was disappointed” by them. Over various objections by the defense attorneys, Parker testified that Stringer told the Parkers he would do whatever it took to fix the asbestos problem.
The government then displayed exhibits 760 and 761, which were pictures of a fence separating the Parkers’ property from Grace’s property. Several large piles of what Parker described as “pure vermiculite” were displayed in the photo. The government then submitted exhibit 630, which was received into evidence over multiple defense attorneys’ relevance objections. The exhibit was a check that the Parkers’ business, Raintree Nursery, received from Grace for $40,000.
The Parkers first met with Grace representatives to discuss selling their property back to Grace on April 4, 2000. Grace offered $950,000 for the property, which Parker saw as “an insult” and refused. Parker did not like the sale agreement because of the following provisions: a liability limitation clause which released Grace forever for any bodily injury or property damage caused by vermiculite ore, tremolite, or material related to the extraction or processing of such materials; deed restrictions which would use four acres to store vermiculite waste material on the property; if demolition costs exceeded $500,000, Grace could either demolish or clean up as it saw fit; and Grace would be invited to be present at all meetings or conversations held with a government agency. Read more »
Posted: March 3rd, 2009 under Law.
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Tuesday’s Early Afternoon Testimony
This afternoon’s proceedings began with Assistant United States Attorney Kevin Cassidy concluding his re-direct examination of Paul Peronard of the EPA. Cassidy led Peronard through a series of exhibits already in the record, many of which the defense had used during cross-examination. As with any re-direct, Cassidy aimed to buttress any weaknesses or inconsistencies in Peronard’s cross-examination testimony by revisiting statements and exhibits and allowing Peronard to qualify his “cross” statements in more detail. Peronard discussed, with great detail as to the time period of 1999 to 2000, many of the difficulties the EPA experienced during its W.R. Grace related clean-up efforts. His answers related specifically to the Parker family, who purchased the screening plant from W.R. Grace, and the EPA’s experience at the screening plant. Peronard reiterated his conclusions that the EPA’s cleanup could have proceeded more quickly were it not for W.R. Grace’s activities, and finished his re-direct discussing the state of the screening plant upon the EPA’s arrival. Cassidy informed the court that he had no further questions, but reserved the right to call Peronard later. Thus, Peronard remains under subpoena and may be called to testify again.
Per Judge Molloy’s strongly worded order of Monday morning, the United States next called Mel Parker. Assistant United States Attorney Kris McLean had hoped to save Mr. Parker and his wife until the end of the United States’ case-in-chief, but could not. Judge Molloy found himself in the pinch-point between a Ninth Circuit Court of Appeals order and the suddenly recalcitrant Parkers, and he neatly solved this problem by giving the United States the option of either calling Mr. Parker or Mrs. Parker as its next witness. This removed any potential problem with their attendance of further proceedings, regardless of their possible position as witnesses/victims.
Mr. Parker’s life story weaves in and out of the potentially criminal acts of the defendants, so his testimony predictably moved forward and backward through Libby’s history, as well as from one vermiculite laden area along the Kootenai River to another. Mr. Parker, now retired, spent his life as a forester, first managing timberlands for the St. Regins Paper Company, and then later starting a nursery to facilitate reforestation with his wife, Lerah. Read more »
Posted: March 3rd, 2009 under Law.
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Parker testimony brings Tuesday action to a close
The late afternoon court session in the W.R. Grace trial dealt with government witness Mel Parker. His testimony touched on his process of buying land near the mine, the cleanup of the land, and disputes over Parker’s 2001 deposition.
After the recess, Parker described the cleanup for the shed on his land. He said his wife Lerah, their stepdaughter, also named Lerah, and an employee of his nursery swept out the shed after purchasing the land from Grace. They wore only flimsy paper masks, because “no one told us there were dangers” in the shed, Parker testified.
Throughout Parker’s testimony, the defense enthusiastically objected to anything resembling heresay or speculation. A couple of times, defense lawyers shot out of their chairs to object, only to be silenced by another defense lawyer objecting.
Parker said the dust near the property became a nuisance, particularly with logging trucks kicking it up in great clouds. So much dust was scattered by the trucks that “sometimes you could only see the (logging truck’s) cab” when it came down the Rainy Creek Road, Parker said. That dust then traveled quickly to Parker’s land, he believed.
Around Thanksgiving in 1999, Parker testified he first caught wind of the Seattle Post-Intelligencer articles about asbestos exposure in and around Libby. Paul Peronard’s initial visit came soon after. A little time later, Parker said he got a visit from former Libby mine manager Alan Stringer, now deceased, who promised to help in whatever way the company could.
These meetings continued sporadically from November 1999 into the summer of 2000. Pictures were provided during this testimony of large piles of vermiculite, taken in 1999 and 2000, dotting Parker’s land. Kris McLean, the prosecuting attorney, asked Parker if he suffered from any diseases of the lungs. “I have pleural plaque,” Parker said. Read more »
Posted: March 3rd, 2009 under News.
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Prosecution introduces Melvin Parker
Paul Peronard appears to be safe from the witness stand and defense- for now- as the U.S. finished its redirect of Peronard early Tuesday afternoon and introduced Melvin Parker, a key witness who bought W.R. Grace land just down the road from Zonolite Mountain.
In 1992, Mel Parker purchased land that W.R. Grace had used as a screening plant for the Libby mine. Parker and his wife ran a tree nursery business that used vermiculite as a soil additive. After Alan Stringer showed the couple the property, the Parkers entered into a buy-sell agreement to purchase the property for $146,000. The Parkers moved into the guard shack in October, 1993, with plans to build a house on the land.
“I couldn’t have asked for a better site for what type of business I would do on the property,” Parker said.
Parker said the only concern he had about the property was a 10,000 gallon fuel tank that pumped beneath the ground. Parker has had problems with fuel tanks in the past, and after he was assured of the safety of the fuel tank, Stringer never mentioned any other hazardous materials in the area.
The prosecution entered into evidence the property’s deed, which included several stipulations about the property including the inclusion of the guard shack and shed already on the land. None of the stipulations included advice not to stir up the the vermiculite on the property.
Parker also said that he thought the piles of vermiculite were going to be removed by Grace. They never were, he said.
Just before the afternoon recess, the prosecution attempted to enter a photograph into evidence that showed Melvin and his wife’s granddaughter sitting on what appeared to be their porch. A large truck is seen in the middle of the photo hauling some form of white-grey substance. The defense objected on grounds of relevance, and Molloy sustained the objection.
-Kelsey Bernius (posted 3:35 p.m.)
Posted: March 3rd, 2009 under News.
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Good Afternoon
Reporter Josh Benham will be taking over as court resumes at 3:15, with the continuing testimony of Mel Parker.
Posted: March 3rd, 2009 under News.
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Court Resumes with Cross Examination of Mr. Peronard
Judge Molloy started the morning by informing the court that a UM journalism student had apparently tried to contact one or more of the jurors. Judge Molloy issued a stern warning that a second offense would be not be treated leniently, and the student would be getting a visit from a U.S. Marshal. When the jury came in, Judge Molloy briefly explained the reason they were not in court the day before, and repeated his earlier admonishment of the student. He clarified that the juror who was contacted correctly did not speak with the journalist, and reiterated how entirely inappropriate the encounter was.
Mr. Bernick for the defense then resumed cross examination of Mr. Peronard. Mr. Bernick used a whiteboard to explore how the EPA gained access to St. John’s Lutheran Hospital, the screening plant, and the mine. Mr. Peronard was quite successful in elaborating upon Mr. Bernick’s leading questions, in several instances giving explanations beyond the simple “yes or no” answer requested by the attorney. Mr. Peronard would often clarify or qualify his answers, such as stating “Just to be clear, we aren’t talking about…” before answering the question posed by the defense.
The prosecution did object when Mr. Bernick read from Defense Exhibit 5550, which had not been admitted into evidence, while he was attempting to refresh Mr. Peronard’s recollection about access issues with St. John’s Hospital. Evidence used to refresh a witness’s memory is not given to the jury unless it is offered and admitted separately.
Ms. Kubota, representing defendant Jack Wolter, next cross examined the witness. Her questions focused on Exhibit 661, an aerial photograph of the mine, and questions about the location of Rainy Creek Road.
Finally, Mr. Frongillo, representing defendant Robert Bettacchi, used a very persuasive technique to illustrate the time frame relating to Counts 3 and 4 and the EPA’s involvement in Libby at the same time. The exhibits were simple calendars showing the dates correlating to the Counts and the time period when Mr. Peronard began his work in Libby. Count 3 showed an overlap of 206/226 days, with a 304/324 overlap for Count 4. Mr. Frongillo was effective in both eliciting simple “yes” or “no” answers from Mr. Peronard, and clearly demonstrating his point through the illustrations. Judge Molloy at one point allowed Mr. Frongillo to publish the slides to the jury without offering them, stating, “You don’t have to keep offering unless you do something I’m not anticipating,” which elicited a slight chuckle from the court.
– Hannah Stone (posted 2:40)
Posted: March 3rd, 2009 under Law.
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Defense Finishes Cross-Exam of Peronard
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.)
Posted: March 3rd, 2009 under Law.
Comments: 2 | [edit]
The prosecution begins its redirect of Paul Peronard
After defense attorney Thomas Frongillo concluded his cross-examination of expert witness Paul Peronard, the prosecution began its redirect examination this morning.
Slogging through objections by defense attorney David Bernick, prosecutor Kevin Cassidy appeared to go almost line-by-line with Peronard through his previous cross-examination. Bernick’s objections focused mainly on Cassidy’s quoting of the defense’s questioning from the daily court transcripts. It also focused on certain questions by the prosecution that overstepped the boundaries of Peronard’s legally-defined expertise.
Cassidy’s redirect covered the EPA’s 104e request for information from Grace, the company’s response to their requests, and GIS maps showing detection spots of asbestos in Libby, Mont.
At times Judge Donald Molloy appeared frustrated with Cassidy’s questioning tactics and, at one point, told the prosecution to “get to the point.”
Preceding the redirect, Thomas Frongillo, defense attorney for Robert Bettacchi, closed his cross-examination by saying that despite the thousands of documents provided by Grace to the EPA, his client could not be linked to the release of asbestos in Libby.
- Nate Hegyi (posted 1:17 p.m.)
Edited 5:36 p.m.
Posted: March 3rd, 2009 under News.
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Afternoon Re-Direct
Good afternoon, Kelsey Bernius will be reporting for the early afternoon re-direct resuming at approximately 1:15.
-Kelsey Bernius
Posted: March 3rd, 2009 under News.
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Cross examination of Paul Peronard continues
Court began Tuesday at 8:32 a.m. Before the jury entered the court room, Judge Donald Molloy spoke about inappropriate contact of the press with the jury. The judge addressed the actions of a journalism student who attempted to contact members of the jury.
“It’s going to stop. If need be I’ll take more serious measures…it’s totally unethical to be contacting jurors while they’re sitting in a case. It may be that a student doesn’t know the limits. Don’t, don’t, don’t ever contact a sitting juror. If it happens again the next person you’ll be visiting is the FBI,” Molloy said.
Cross examination continued of EPA on-site cleanup coordinator Paul Peronard by defense attorneys on the ownership of KDC property and cleanup and access to the property. Defense attorney Carolyn Kubota continued cross examination, questioning Peronard about the ownership of Kootnai Development Corp. property and the geographical layout of Vermiculite Mountain. Defense attorney Thomas Frongillo, representing Robert J. Bettacchi, began his cross examination working to establish the time frame covered in counts 3 and 4. Frongillo also began questioning Peronard about his first visit to Libby, Mont.
–Kalie Tenenbaum (10:22 a.m.)
Posted: March 3rd, 2009 under News.
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Good Morning
Reporter Nate Hegyi will be taking over for Kalie Tenenbaum as court resumes at 10:15 a.m.
Posted: March 3rd, 2009 under News.
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Good Morning
Kalie Tenenbaum will be reporting this morning as court begins at 8:32 a.m.
Posted: March 3rd, 2009 under News.
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