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Libby, Montana vs. W.R. Grace Corp

Missoula, Montana.

For nearly a decade, officials of the W.R. Grace corporation have declined to defend themselves publicly against accusations that they knowingly exposed generations of a small Montana town to lethal doses of a particularly virulent form of asbestos, profiting without a backward glance as the town’s cemetery filled with hundreds of victims. Last week, attorneys for the multi-national finally broke that silence and told their side of the story in federal court.

There are no significant amounts of asbestos in the mountains near Libby, Montana, they asserted, and Grace’s vermiculite-based products carry no death. “There is no question that miners and their families suffered tragic losses as a consequence of the operation of this mine,” conceded Grace defense attorney David Bernick in his opening statement. But those deaths were the result of unregulated fibrous minerals—not asbestos—and all related to the bad, dusty old days before Grace reformed its milling processes. It was a terrible tragedy, but no one’s to blame.

As for those others, the townsfolk whose hoarse voices foretell a relentless decline from oxygen tank to perpetual breathlessness, well, it may be they got their various asbestos-related diseases from doing brake jobs, or the sort of pick-up construction work men all across the rural West use to get by on. It may be that many of them are not sick at all, just walking around under the pall of false diagnoses. In fact, the lawyers said, the idea that more than 1,200 people in this tiny community have asbestos-related diseases from Grace’s now-defunct vermiculite mine is a grim fairy tail, the invention of one greedy law firm, two incompetent doctors, and three meddlesome federal agents.

That was the message delivered between the lines during opening statements in Judge Donald Molloy’s Missoula, Mont., courtroom, where five former Grace officials as well as the corporation itself stand accused of conspiracy, violations of the Clean Air Act and obstruction of justice. The men could go to jail with sentences ranging from five to 35 years. Fines could reach between $250,000 and $750,000 for the former executives. A guilty verdict for Grace might carry a $280 million price tag.

These arguments are believable, because the alternative—stated succinctly by one defense attorney—is horrific.

“What they are trying to say is that Harry Eschenbach is a bad man,” lawyer David Krakoff said plainly. “That he didn’t care about the workers of Libby and was willing to let them suffer death and disease.”

The case against W.R. Grace is of enormous consequence: in terms of potential jail time and fines, it ranks as one of the largest criminal environmental cases in the history of the United States. The Denver Environmental Protection Agency has been so closely tied to the matter—both in terms of the cleanup and the prosecution—that acquittals would be an enormous blow to the office’s credibility.

For those who have lost family members—the death list had hit 274 as of 2006—guilty verdicts will vindicate their humanity: the corporation treated the people of this community like dirt. Their pain, their suffering, their loss will matter in the eyes of the law.

As well, guilty verdicts would vindicate the EPA’s controversial cleanup in Libby, and might finally force the federal government to acknowledge and do something about the risk to those living in upwards of 15 million buildings in the United States insulated with vermiculite-based products from Grace’s Libby mine.

The truth is, Grace and its executives are not being charged with murder, nor with any actions that contributed to the deaths of those miners. The miners’ family members who died of the dust brought home on their husbands’ and fathers’ clothing are not being avenged directly here; nor are those whose disease stems from living in a home insulated with asbestos-contaminated vermiculite.

The charges prosecutors have been able to stick beyond the reach of statutes of limitation are environmental in nature: that Grace and its managers conspired to defraud the government and violate the Clean Air Act by knowingly releasing a hazardous material into the ambient air that would cause the imminent endangerment of those who came in contact with it.

This means that prosecutors can tell the jury of the lengths to which Grace contaminated the public space of Libby, to the point where anyone going about their business in town could end up breathing death that would take decades to manifest (asbestos-related diseases have long latency periods). And more to the point, that Grace and its men knew exactly the nature of the toxic legacy they were leaving behind.

When W.R. Grace executives closed the Libby mine in 1990, 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 planning business—was also chock full of the stuff.

The jury will hear that 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.

Grace and the defendants counter that everyone in government from the EPA to Montana’s Department of Environmental Quality, that everyone in the town from the county commissioners to Mel and Lerah Parker, knew there was asbestos in the vermiculite. This argument must be read as the defense’s effort to cover all bases: there was no asbestos in our vermiculite—but just in case the jury decides there was, we’ll say the people of Libby made decisions with their eyes wide open.

The prosecution, in its opening statement, chose to tell a familiar story: that of a corporation with a violently impaired sense of moral responsibility. Attorneys for the government referred to Grace’s internal studies showing that their product, their ore, was far more deadly than other kinds of asbestos, that it was unusually friable (that is, susceptible to becoming airborne), and that its Libby workforce had been decimated by asbestos-related diseases. In one set of such tests, Grace was unable to find a level of contamination low enough that harmful levels of asbestos would not be released upon disturbance.

“It was not a secret that their vermiculite contained asbestos, and it was well known that asbestos was bad for you,” assistant US attorney Kris McLean explained to the jurors. “What the government intends to show is that these defendants kept a closely guarded secret: that their product—even when it contained only a small amount of asbestos—released hazardous levels of asbestos through the air when disturbed.”

The prosecution is walking the narrowest of ledges. The provisions of the Clean Air Act under which Grace and the men are charged didn’t exist until 1990, the year the mine closed. All testimony and evidence of Grace’s activities in Libby before that date must be carefully targeted to lay the foundation only for the defendants’ knowledge and actions as they relate to post-1990 releases. And since Grace and its employees were responsible for few overt acts in the 1990s, the prosecution’s theory is that they indirectly caused the hazardous releases through the actions of ordinary citizens, unwitting partners who could not help but disturb vermiculite while going about their day to day lives.

It’s an unconventional approach, and miraculous that prosecutors have gotten even this far with the case. In June 2006, Judge Molloy threw out the original conspiracy charges due to the statute of limitations, effectively gutting the government’s case. It was only because the judge allowed prosecutors to file a superseding indictment—adding accusations of obstruction for Grace’s heel-dragging in 1999 and beyond—that these men and their corporation are now called to account for themselves.

The defense is doing its best to limit the prosecution even further: to so much as mention the fact that there’s been a Superfund cleanup in Libby, insists attorney Bernick, is to imply that something is wrong up in Libby and prejudice the jury against his client. Bernick, one of the nation’s premier trial lawyers (he defended Philip Morris and others against tobacco litigation), reportedly earns $800 to $1,000 an hour, and he questioned EPA on-site coordinator Paul Peronard as though he planned to rack up the hours. Unable to keep Peronard, a bright, compassionate and charismatic man, off the stand entirely, the defense was able to restrict his testimony to the point where he was not even allowed to venture an opinion as to whether or not the situation in Libby was hazardous.

Peronard could, for instance, describe a scene in which Mel and Lerah Parker’s young granddaughter threw clods of rocks against a wall to bust them open, and add that these rocks came from the mine site. But when he mentioned that the rocks were full of asbestos, the judge struck his testimony, advising the jury to disregard it.

Though Judge Molloy ruled in his favor often as not, Bernick seemed frustrated by the proceedings, at one point even shaking his finger at the judge.

“I am trying to be patient with you,” Judge Molloy responded. “You make your objections and I’ll rule on them.”

The trial is expected to last three to five months. After opening statements, the courtroom cleared out quite a bit. The army of grey-suited attorneys representing the defendants (there are nearly 30 lawyers involved in all, only three of which sit at the government’s table), will likely stay on, but the press bench had dwindled to a skeleton crew and members of the public could finally find places to sit by the middle of week one.

So far, prosecutors have used a delicate touch. The first witnesses called included men who played Little League baseball next to the export plant, and a woman who spent her teenage years running track. While all testified they had contracted asbestos-related diseases, it was their hoarse voices, like static on the radio, which spoke loudest. Defense attorneys warned against overly emotional testimony, yet there was little of this. More moving than anything she said was Wendy Challinor’s labored walk to the witness stand, and her attempt to fight back tears after being asked of her disease. And Vernon Riley’s simple statement about his late wife Toni, “I had her for two and a half years after she got the cancer,” that described beyond testimony the depth of his loss.

Grace attorney Bernick confronted most of these defendants with medical reports from doctors stating that they were, in fact, disease free. None of the witnesses had seen these reports before, they testified. Interestingly enough, all were from the same two doctors. Later, asbestos victim advocate Gayla Benefield clued me in: “Those are Grace’s doctors,” she said. But the inference that Libby’s doctors were misdiagnosing people had an impact. One reporter confided to me he thought there might be some sort of mass delusion going on, at least as regards the number of sick people.

Two older women sat in the courtroom for most of the proceedings, one holding a Resistol cowboy hat decorated with eagle and pheasant feathers belonging to her late husband. Despite her unassuming presence, her name and fame precede her: Norita Skramstad is Les Skramstad’s widow. Together with Gayla Benefield, the trio were to a large degree responsible for setting in motion the events leading up to this day. Both their family trees are riddled with asbestos casualties.

Les died fighting. A few weeks before he passed in 2007, we spoke and he likened Grace officials to Saddam Hussein, who had just been hung. “They all shoulda been at that party,” he noted wryly. It is damn tragedy that Les died first. In the end, it was mesothelioma—a rare, asbestos related cancer—that got him, rather than the asbestosis he’d been living with for decades.

The defense paints their clients as family men from religious and blue collar backgrounds, old men in their seventies who if sent to jail might reasonably expect to die there. Montanans are a subtle people, and none of this is lost on the jury. Les may well get his justice.

Defendants W.R. Grace, William McCaig, Henry Eschenbach, Jack Wolter, Robert Bettachi and Robert Walsh all are charged with conspiracy to defraud the government and violate the Clean Air Act. Wolter and Bettachi are charged additionally with two counts of violating the Clean Air Act, Grace faces three such counts. Grace is also accused of four counts of obstruction of justice.

A sixth co-defendant, Alan Stringer, died in 2007 of a non-asbestos related cancer. Attorney Mario Favorito is a seventh defendant on the conspiracy charge, and he will be tried separately due to his position as counsel for Grace.

The trial is expected to last between three and five months.

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