Libby, Montana - A narrow victory was won by federal prosecutors yesterday in their pursuit of W.R. Grace on criminal charges that the Columbia company released dangerous asbestos fibers throughout a mining town.
A ruling by an appeals court panel indicated that the Montana U.S. attorney might be allowed to call several witnesses and use studies that a lower-court judge had barred from a trial that was pending over Grace's actions in Libby, Montana.
Donald W. Molloy, a U.S. District Judge, rejected the government's bid to present as many as nine witnesses and three critical environmental health studies at the trial, citing deadlines the prosecution missed in the case.
A three-judge panel from the U.S. Court of Appeals for the 9th Circuit, however, decided yesterday that Molloy exceeded his authority. The appeals court said that Molloy must find that the government lapse was "willful and motivated by a desire to obtain a tactical advantage" to prevent witnesses from testifying.
The appeals court noted "We are sympathetic to the district court's attempts to manage this large and complex criminal trial." The panel said the trial judge could not find a basis to "justify the exclusion or limiting testimony or documents -- either as a sanction or as an evidentiary issue."
During the February 2005 indictment, federal officials promoted the case as one of the most significant environmental crimes in decades. Authorities indicted Grace and seven current and former officials on conspiracy, obstruction and other charges, and accused them of knowingly spreading disease-causing asbestos for two generations in the northwestern Montana town.
A federal study cited in the case concluded that more than 1,200 people in Libby, Montana and surrounding areas showed signs of lung problems tied to asbestos diseases from the mine owned by Grace. The bulk of the problems appeared in people who had not worked at the site but had come into contact with fibers while conducting their lives on a daily basis.
The U.S. attorney in Montana, William W. Mercer, said the appeals court ruling put the government "one step closer to the ultimate goal of trying . . . W.R. Grace and the individual defendants with complete evidence."
An outside spokesman for W.R. Grace, Greg Euston, noted that the company was continuing to review the complex opinion.
The appeals court continues to consider an even more significant appeal by prosecutors. Last month, government lawyers implored a three-judge panel to reinstate Clean Air Act charges that claim Grace and its executives endangered Libby residents, with full knowledge, by operating the mine after scientific studies raised questions about the impact on workers’ health there. Much of the evidence is barred by the statute of limitations say defense lawyers.
W.R. Grace bought the Montana mine in the early 1960s and operated it until the early 1990s. Earlier this year, former mine manager Alan R. Stringer and a defendant in the criminal case, died. Anti-asbestos advocate Les Skramstad, one of the first to win a civil court judgment against Grace for its activities in Libby also died.