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Corporate Poisoners Walk in Sickening Verdict
No Justice for Libby
by ANDREA PEACOCK

A collective stunned silence hit the state of Montana last Friday at lunch, as news filtered out from federal district Judge Donald Molloy’s Missoula courtroom that W.R. Grace and three of its former executives had been acquitted of all crimes in connection with the asbestos poisoning of Libby, Montana.

Then the emails, phone calls and FaceBook messages started: “We are sick to our stomachs…” “What an injustice, tell me who I can write to…” “Not guilty?? Pardon me, but WTF?? This is shocking.” “Surely 2,000 cases of illness and about 225 deaths in the Libby area are not their fault. B*tards.”

Court watchers were less surprised. From the nature of the charges themselves and the statutes of limitations, from the rulings prohibiting evidence Molloy deemed prejudicial to the final jury instructions, Grace’s lawyers prevailed on nearly every point that gave them an edge, making it all but impossible for the 12 jurors to come to any other conclusion.

At issue were criminal charges for environmental crimes against the U.S. government and people of Libby, Montana: namely, that Grace and these men knowingly exposed generations of a small Montana town to lethal doses of a particularly virulent form of asbestos from its vermiculite mine there, violating the Clean Air Act in a conspiracy to defraud the federal government, and obstructing the subsequent investigation. More than 270 people from Libby lie in their graves due to asbestos from the mine, and another 1,800 (from a community of about 12,000) walk around with the likely death sentence of an asbestos-related diagnosis.

The government’s case walked a razor’s edge of dates and crimes. The Clean Air Act provisions Grace was accused of violating didn’t exist until 1990, the year the mine closed. Furthermore, the five-year statute of limitations began running at the end of 1999, when a newspaper series brought the tragedy in Libby to light. Since charges weren’t brought until 2004, that left a very thin sliver of time in which to find evidence of wrongdoing.

So while prosecutors were permitted to introduce evidence of the conspiracy dating back to 1976, it also had to prove that this conspiracy continued through the Clean Air enactments of 1990, and into the relevant time period after 1999. This was particularly problematic as it related to the human defendants: Robert Bettacchi, Henry Eschenbach, William McCaig, Robert Walsh, and Jack Wolter. McCaig, for instance, retired before the 1990 Clean Air Act provisions came into existence. Wolter was fired in 1994, and Eschenbach retired in 1996. (There were originally seven defendants along with Grace: Alan Stringer died before having his day in court; O. Mario Favorito had his case severed due to his unique status as Grace counsel. Charges against Walsh and McCaig were dismissed at the tail end of the case, when the government realized the court’s restrictions on evidence made it impossible to prove the charges against them.)

The government’s theory of the case was elegant despite these challenges: each charge complemented and necessitated the others. Grace knew the specific and unique toxicity of its tremolite asbestos fiber, prosecutors asserted, yet withheld crucial pieces of evidence from regulatory agencies in order to keep turning profits and avoid liability. Company memos discuss these goals in detail through the 1970s, as executives debated what to do about Libby product lines while federal regulations regarding asbestos were in flux. This was the conspiracy.

The deception took on some urgency in 1990, the theory continued, when federal law made it a crime to release a hazardous substance into the ambient air, knowing that it created the risk of imminent death or serious injury. Assistant U.S. attorney Kris McLean accurately likened the vermiculite left around town to land mines set for Libby’s citizens to step on.

When W.R. Grace executives closed the Libby mine in 1990 and split town, they did so knowing that the high school and middle school running tracks had been paved with mine tailings; that the Plummer Elementary School ice skating rink was constructed with its ore; that the former screening plant sold to a local family, the Parkers, for their nursery and storage businesses was blanketed with asbestos-contaminated vermiculite; that the export plant it donated to the town—which was subsequently leased for a family-run retail lumber and planing business—was also chock full of the stuff.

Grace was sloppy with a product it knew to be lethal, allowing it to be spread around the Little League baseball fields, to be used by a local sand and gravel company, to be loaded by pickup trucks and carried to gardens and yards throughout town, and to “sand” the dirt road running up Rainy Creek to the mine, frequented by locals to access hunting and by kids to get to a popular party meadow.

In the prosecution’s narrative, the citizens of Libby became unwitting agents of Grace, indirectly causing the hazardous releases while going about their day-to-day lives. These were the Clean Air Act violations.

When people became sick, when people died, their families took Grace to court and won: sometimes settlements, sometimes guilty verdicts—all amounting to modest sums of money. To the company, it was the cost of doing business. Grace had profited from Libby, unloaded its contaminated properties, and gotten out of town more or less scott-free. This was the conspiracy, prosecutors said, in action.

Then in 1999, Andrew Schneider’s series on Libby was published in the Seattle Post-Intelligencer. The Environmental Protection Agency sent a team to town to find out what was really going on. As the EPA agents talked with Grace, the company stalled, misled and outright lied to them, both in person and in writing, causing delay in the cleanup and yet more exposures to the deadly fibers. This was the obstruction.

“They tell a little bit of the story, they tell the wrong story, they deflect, they delay…” attorney McLean argued to Judge Molloy against the defendants’ motions to acquit. “They need to continue hiding the ball, otherwise the endangerment is going to be discovered. If Grace were to tell the EPA ‘We knew the workers were going home with dust on their clothes,’ given the sickness that existed in the population, they would be responsible for that. It’s not the kind of statement they could make to the government and not let the cat out of the bag.

“This is the company line, this is what they had to say. They cannot tell the truth about this or they will suffer substantial liabilities and possible criminal prosecution.”

If that was Grace’s corporate strategy for the nearly three decades it owned the mine, it was also a brilliant legal strategy that served them just as well in 2009.

By my count, there were about a dozen different arguments put forward by Grace and the other defendants upon which the jury could legitimately have hung its not guilty verdicts. These included assertions I found ludicrous—like the notions that Libby’s fiber is not actually a regulated form of asbestos, and the sick folks up there are not really ailing, but misdiagnosed—but which might have found traction among the 12 people who haven’t spent the last 10 years researching the subject.

Other theories were designed to create confusion. Grace pounded away at the government’s science. Toxicology, geology, epidemiology are not easy subjects, and absent Grace’s specific knowledge about the asbestos in Libby, the rest of us have always been playing catch up. So when Grace attorneys put on experts who claimed the government got it wrong, how were the jurors to say, beyond a reasonable doubt, who had it right?

Lead Grace attorney David Bernick zeroed in on the unusual idea that Grace used innocent third parties to cause the release of asbestos. He likened it to having a bucket full of a hazardous substance. If he were to tell someone to kick the bucket, he reasoned, he’d be liable. But to set the bucket down on the ground and walk away, then be held liable 10 years later when someone kicked it, would be unfair, and not the intent of the law.

Grace argued that its internal debates on what to do about Libby were legitimate business discussions, not evidence of conspiracy. Attorneys, knowing full well that property rights play well in Montana, claimed Grace had every right to deny access to the mine to EPA investigators, given concerns about liability and its misgivings over the EPA’s cleanup plans. They claimed EPA questionnaires were intended as “gotchas,” an attempt to trick Grace into providing answers that would provide a basis for prosecution. They made full use of the stereotype that Montanans distrust the power of government, turning what were probably honest mistakes by federal investigators into allegations of full-scale corruption.

“What did [the prosecutors] show by their conduct?” Bernick asked in closing. “They care a lot about Libby, they had an allegiance to Libby; the somber tones of Mr. Cassidy talking about the toll of Libby. Their allegiance was to Libby, not to the law…

“They’ve taken a political story and criminalized it, want to bring it home to you and make it stick.”

It was a pretty slick argument, allowing the jury to have sympathy for Libby, empathy for the prosecutors, all the while voting for the defense.

Most convincing was evidence that the State of Montana and EPA knew enough of what was happening in Libby, they should have been all over that town 30 years ago. There is blame to share, and while that does not release Grace and these men from their responsibilities, it is utterly true.

And if 11 weeks of such confusing, conflicted testimony weren’t enough to raise reasonable doubts, the defense planted a couple ringers within the jury instructions, the court-approved guidelines sent with the jurors into their deliberations. One defined “imminent danger” as a command that the prosecutors must prove it was “more likely than not to cause death or serious bodily injury.” Defense attorneys construed this to mean that at least half the people exposed in Libby needed to be dying (instead of just the 20 percent of the community members showing evidence of asbestos-related lung disease). Another instruction specified that the releases of hazardous material placing people in such imminent danger must have happened “for the first time” after November 1999. By that logic, Bernick’s bucket metaphor applied: people had been kicking it for nearly a decade. There were no first times after November 1999.

Prosecutor Kevin Cassidy ended his closing statement to the jury with an aerial photo of Libby illustrating the EPA’s sampling efforts over the years: green dots marked clean samples, red dots signified those than came back positive for asbestos. “Ladies and gentlemen, this is Libby when the EPA arrived there. The town is full of asbestos contaminated vermiculite.”

It brought to mind the day when Grace lawyers superimposed the green dots on top of the red, implying that the prosecution had done something wrong by showing the red dots at all. In the Grace version, all was green. There was no asbestos. It aptly illustrated the prosecution’s point, Grace’s company line for decades: “There is nothing to see here, it all comes out in the process, it’s less than one percent, there is no problem,” Cassidy said. “There’s nothing to see here. There is no risk.”

Gayla Benefield and Norita Skramstad were five minutes away from getting in the car to make the four-hour drive to Missoula when they got word the jury had a verdict. So the two women, long-time Libby residents and advocates for the asbestos victims, both carrying the scars of Grace’s tremolite in their lungs, were not sitting in the front row to see justice done in person, as Norita’s late husband Les had hoped for.

And certainly neither of them would say justice was done at all. “They got away with murder,” Norita told me on the phone. “Molloy was their best defense, he won it for them.”

What she says is true. Judge Molloy kept out as best he could any evidence that humanized the victims in Libby: there was to be little talk of children’s exposure, no description of how it is to die from the slow suffocation of asbestosis, nothing that brought to life the cases of “occupational exposures,” the workers and their family members who were killed. Internal Grace memos that debated things like the cost of showers and uniforms for its workers were redacted or omitted all together. In one order, Molloy disallowed the use of 47 out of 54 of the government’s proposed exhibits, many on the grounds that they would be prejudicial—that is, their potential emotional impact outweighed their evidentiary value.

After all, this was not a case about lives shortened or stolen. The defense attorneys referred often to the incidence of sickness and death among workers and their families—when they acknowledged it at all— as though it was a legitimate bargain for those men to hand over their lives (and those of their wives and children) in exchange for the privilege of earning a livelihood.

Furthermore, Molloy allowed the tenor of the case to be debased: defense attorneys mocked their opponents outright, and calling the government’s attorneys and witnesses alike liars (including a particularly merciless attack by Bettacchi attorney Thomas Frongillo on the character of nursery owner Mel Parker, who if defense lawyers were to be believed, cared about having waterfront property more than he cared about his family’s health). To their credit, prosecutors McLean and Cassidy kept their composure throughout, and their focus on the real story at all times: when Grace lawyers in their closing arguments talked of how the company “followed up” with its industrial clients out of concern for asbestos levels those workers were exposed to, McLean posed a simple question drawing a chorus of objections (that were, of course, sustained): “Who followed up with the Libby residents?”

Norita asks if the verdicts can be appealed. I tell her that while they can’t, there’s still the possibility of state charges on homicide. But she has no appetite for this. “I think we’ll just go on with our lives,” she says. “Let it all go behind us.”

During the trial, an occasional lunch posse of journalists gathered at the Union Club to swap impressions. At one point when Gayla and Norita joined us, Andrew Schneider commented he was tired of writing about Libby, and I fully understood how he felt. But I also had a pretty good idea what Gayla’s response would be: “I’m tired of living with it, but I’ve got five friends dying right now. There were six, but one passed away on Sunday.”

It never was Gayla Benefield or Norita or Les Skramstad’s job to get justice for Libby. It was the job of the EPA and Department of Justice; it was the duty of Montana’s media; and it remains the responsibility of the Montana Attorney General.

Montana law allows that “A person commits the offense of negligent homicide if the person negligently causes the death of another human being.”

As of early 2007, there were 274 people on Libby’s self-kept scorecard of asbestos casualties—this includes 33 cases of mesothelioma identified by the Agency for Toxic Substances and Disease Registry (mesothelioma is a rare lung cancer associated exclusively with asbestos exposure), as well as miners, miners’ wives, miners;’ children, and scores of people who had no connection to the mine at all—they simply lived in Libby. Given the latency period of asbestos related diseases—which can stretch for as long as 40 years—the community will likely be burying people whose lives were shortened by the contamination Grace left lying around town well into the middle of this century.

Just because the rest of us are tired of the tragedy is no excuse: There are an awful lot of people still waiting for judgment day.

Montana Attorney General Steve Bullock can be reached at the Department of Justice,P.O. Box 201401, Helena, MT 59620. Phone (406) 444-2026, or via email: contactdoj@mt.gov

ANDREA PEACOCK is the author of Libby, Montana: Asbestos and the Deadly Silence of an American Corporation (Johnson Books, 2003). She lives south of Livingston, Montana, and can be reached at apeacock@wispwest.net