UM Grace Case

The four remaining lead defense attorneys claimed to have rested their case Tuesday morning, but their stipulations prompted Judge Donald Molloy to recess the jury for a brief hearing. When the jury came back into the courtroom, Molloy said the case could go before them Wednesday.

After resting its case, the defense moved to admit a slew of new documents into evidence, including published animal studies on the effects of tremolite and the e-mails of a dissenting Environmental Protection Agency employee named John Malone, whom neither legal team could find. Molloy asked whether Malone was even still alive. Bernick assured him that he was.

The e-mails supposedly show EPA internal disputes over how best to proceed in Libby and differences of opinion about asbestos science. Government prosecutor Kevin Cassidy argued that the e-mails were not relevant to the case, as they do not reflect official actions and statements made by EPA. Besides, he said, there should always be internal discussion in government agencies to decide the best course of action.

Cassidy said defense witness William Corcoran painted the EPA Region 8 team as a bunch of cowboys out in Denver trying to make waves. The Malone e-mails, though irrelevant, would corroborate this sentiment and undermine the EPA’s credibility with the jury, Cassidy said.

After arguing to omit the e-mails, Cassidy asked that Paul Peronard, EPA director in Libby, be allowed to return to the witness stand to offer testimony rebutting the damaging statements made by Corcoran. Peronard had been sitting in the gallery all morning, his first appearance in court in weeks.

Molloy asked what specific charge Peronard’s testimony would go to, but Cassidy simply expanded on his point about EPA’s credibility.

At first, Bernick seemed opposed to the letting Peronard back on the stand. But as Cassidy got into issues of EPA’s official statements versus the apparent infighting suggested in the Malone emails, Bernick’s demeanor changed.

Molloy remained opposed, saying, “Relate it to a charge, please.”

Bernick jumped in, though, and offered to call Peronard as the defense’s next witness, saying, “If you pull this little string, the whole thing unravels.”

Molloy agreed to allow Peronard back on the stand. He called the jury back, only to dismiss them for lunch. He apologized for wasting their time and said there was a real possibility that the case could go to them tomorrow.

-Alex Tenenbaum (posted 1:45 p.m.)

Bettacchi’s defense was in full force today as witnesses were called to demonstrate Grace’s complete transparency regarding the health risks of the Libby property that was sold or transferred after the closure of the mine.

The first witness of the morning, former Libby city attorney Mark Fennessey, testified to the environmental concerns the city had with property Grace donated to the city. While the city planned to use the property to attract industry to the area, the environmental concerns of asbestos contamination and diesel fuel spills raised red flags.

However, Fennessey testified that he, city council, and the mayor had been advised of the location of the hazards and the specific type of risks they threatened. In fact, the city acknowledged that it has been given sufficient opportunity to examine and assess the three subject areas that were at risk. Further, the city said it would assume full responsibility for the costs of operating, maintaining, and removing or remediating the three subject areas as may be required by law. However, Fennessey said Grace took further action to clean up the area, and even postponed closing on the property in order to mitigate potential risks.

On cross, Kris McLean brought out that while everyone was aware of the asbestos issues, not everyone was clear on the immediate health problems associated with the property. In fact, none of Grace’s disclosures spoke directly to the health problems of the property.

Then, Patrick O’Toole for Mr. Bettacchi called the next witness. Joseph Rogan, a former Grace controller, further testified to the donation of Grace property to the city of Libby. While the city would not agree to provide indemnity to Grace against third party claims or against currently unknown issues on the land, Rogan said Grace did not have any reason to believe that any further environmental issues would be identified in the future.

Finally, Frongillo called Melvin Parker back to the stand. What started as a professional exchange quickly escalated to a battle of divergent viewpoints with coarse words and harsh accusations. Frongillo’s main attack centered on the date of Parker’s awareness of the health risk of his property.

Frongillo pressed Parker about a conversation he had with Patrick Plantenberg who had worked for the state on the reclamation of the Grace property. Plantenberg had done an extensive analysis on the mine, and claimed to have supplied Parker with language that specifically warned Parker of the health risks associated with the property. However, Parker stood strong in claiming that he had never seen the analysis, and that he did not base any of his actions on the information contained within it.

To emphasize his point, Frongillo compared the language in Parker’s management plan with that of the environmental analysis Parker claimed to have never seen. He took Parker word for word through two paragraphs of the environmental analysis, and then compared it side by side to language from his own management plan. Frongillo started accusing Parker of plagiarizing the analysis, which would make it impossible for Parker to have never seen the document. Parker maintained, as he had testified before, that the language came from an independent source, and that Mr. Frongillo was welcome to investigate the language from that document if he liked.

Frongillo then launched his full-scale attack on Parker, claiming he lied and plagiarized to protect his own interests. “You care more about the money that is sitting in your pocket than you care about this criminal trial,” cried Frongillo. Frongillo then told Parker he had one more issue he needed Parker to resolve before he could go back to where he came from.

Over Parker’s objections, Frongillo attempted to corner Parker into saying he wanted to keep the vermiculite on the property. Parker resisted Frongillo’s advances by claiming that the vermiculite was no good to him unless it had already popped, and further stated that he had done Grace a favor by relieving them of their obligation to remove the material. Frongillo never quite got the words of surrender he was looking for, but he continued to press Parker further. Parker finally called the last shot when he told Frongillo that he was starting to sound like he was done.

Frustrated, Frongillo spouted, “You went forward with the deal with your eyes wide open,” and the morning was called for recess.

– Kathryn Mazurek (10:25 a.m.)

Attorneys representing Robert Bettacchi called several witnesses Tuesday morning in order to discuss the export plant that W.R. Grace & Co. donated to the city of Libby, and Mel Parker’s purchase of the screening plant from Grace.

Thomas Frongillo, representing Robert Bettacchi, said that Parker was called to testify again because additional information had surfaced since Parker’s first testimony. Frongillo asked several questions regarding the Parkers’ proposal to buy the mine from Grace and the Parkers’ intention in buying the land for its timber.

Frongillo asked Parker about an Environmental Assessment document of the land. According to the document, the vermiculite ore on the mine land had asbestos in it, which posed a health hazard. Parker made clear that he had never received this document, though the author testified earlier in the case that Parker had received the assessment.

Frongillo showed Parker a transcript from his first testimony, claiming that Parker plagiarized language in his first testimony out of the Environmental Assessment, which would indicate that Parker had seen the Environmental Assessment before. Frongillo showed an illustration comparing the draft Environmental Assessment and Parker Land Management Proposal, showing the two documents to be very similar in wording. Parker repeated that he had never seen the Environmental Assessment.

Defense attorney, Brian K. Gallick representing Robert Bettachi, called Mark Fennessy, a lawyer from Butte, Mont. He has practiced law since 1971 and from 1981 to 2000 worked for Libby as the city attorney.

Fennessy’s testimony focused primarily on several documents outlining communication between Grace and the city of Libby concerning Grace’s donation of the export plant to the city.

The prosecution’s cross-examination focused on whether the city of Libby was made aware of potential health hazards of the land donated from Grace.

The defense then called Joseph Rogan from Winchester, Mass. He worked for Grace from 1988 to 1999 as a controller responsible for accounting, insurance and cash management for the company. The direct-examination focused on showing that the city of Libby agreed to the donation of the land despite knowledge of contamination.

-Kalie Tenenbaum (Posted 10:30 a.m.)