LIBBY (AP) – People sickened by asbestos from a Libby mine that closed in 1990 continue to hope for a meaningful trial as federal appellate judges consider the future of the government’s case against mine operator W.R. Grace & Co., an activist afflicted with asbestos-related disease said Thursday.
At a Seattle hearing Monday, federal lawyers told a three-judge panel of the 9th U.S. Circuit Court of Appeals that properly prosecuting Grace on charges it concealed dangers of asbestos in Libby will be impossible, unless several court decisions are reversed.
The appellate decision is “the most important decision for our future,” activist Gayla Benefield of Libby said Thursday.
U.S. District Judge Donald Molloy of Missoula decided last year to ban federal prosecutors’ use of scores of documents, studies and testimony by expert witnesses. Molloy’s decision derailed government efforts to bring Grace and seven of its current and former senior executives and managers to trial last September.
In court Monday, federal lawyers asked the 9th Circuit to overturn Molloy’s rulings.
Since at least the mid-1970s, Grace and its officials knew about but concealed devastating health effects tied to asbestos exposure, the government said, and consequently many Libby residents “are dying, or have died already, from mesothelioma, asbestosis and other asbestos-related disease.”
Assistant U.S. Attorney Kris McLean from Montana and Todd Aagaard from the Justice Department said Molloy’s rulings forbid the government from presenting information drawn from Grace’s own asbestos testing of its vermiculite products. Also forbidden are information from the U.S. Environmental Protection Agency’s asbestos sampling in Libby, and the results of a government study in which 7,300 people from the Libby area had chest X-rays and medical interviews, the lawyers said. The study found more than 1,300 of those tested had lung abnormalities consistent with asbestos-related disease.
McLean and Aagaard also said Molloy dismissed the most serious charges, multiple counts of “knowing endangerment.” The Clean Air Act states it is a crime for anyone to release hazardous pollutants into the air while aware those actions will place another person in clear danger of death or serious injury.
Molloy also accepted Grace’s contention that the government misidentified the specific type of asbestos in the company’s vermiculite, McLean and Aagaard said.
“It doesn’t matter what they call it,” said Dr. Brad Black, medical director for Libby’s Center for Asbestos Related Disease. “Cemeteries and hospitals throughout the Northwest are filled with people fallen by the asbestos from Grace’s vermiculite.”
Christopher Landau represented Grace and its officials during the Seattle hearing. Landau relied on Molloy’s justification for the rulings, and said neither the company nor employees behaved unlawfully.
Because the government has charged the company and seven of its officials “with unprecedented environmental crimes carrying serious and far-reaching penalties, courts must be especially scrupulous in upholding the rule of law,” Landau said. He told the judges that “speculating on the scientific definition of asbestos” is not something jurors are equipped to do.
Grace and some of its senior staff were accused of crimes that include criminal conspiracy and knowing endangerment. Charges were announced in 2005.
A year ago, Molloy raised concerns about whether some of the alleged crimes had occurred beyond the statute of limitations. McLean swiftly placed evidence before another federal grand jury, which reissued and updated the indictments.
The trial tentatively is rescheduled for September. Federal lawyers are awaiting a 9th Circuit decision before moving forward.
Time is critical, Benefield said.
Government witness Les Skramstad, sick with lung cancer attributed to asbestos exposure, died in January and the following month cancer claimed Alan Stringer, former general manager of the Libby mine and a defendant in the pending case. Stringer’s family said his illness was not related to asbestos.
“For every Les Skramstad who passes away, two or three more are being diagnosed,” Benefield said.
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