On Tuesday, February 24, 2009, (day two of the trial), the prosecutors called the government’s first witnesses and the objections flew fast and furious. By objecting, Barbara Harding, one of the Grace lawyers, is trying to maintain a narrow time frame regarding the alleged criminal acts. Kevin Cassidy, a senior lawyer for the USDOJ’s Environmental Crimes Section is leading the case for the government.
As reported by Tristan Scott of the Montana Standard: “Just as 42-year-old Kelly Cannon would begin to describe driving truckloads of vermiculite from the Grace mine into town – ‘When you dumped your load it would blow everywhere’ - Harding would interrupt with an objection on grounds of relevance. Cassidy would then have to establish a time frame for the exposures, and restrict the witness's testimony to events that occurred after 1990.” You can get daily updates on the trial at http://www.mtstandard.com/special_reports/wr_grace_trial/. The trial continued with six other Libby residents who have been diagnosed with asbestos-related diseases. None worked at the Grace mine.
As to the objections, a previously ruling by US District Judge Don Molloy held that testimony about releases must fall under a relevant criminal provision of the Clean Air Act, which was not enacted until 1990. This is one of the key issues at play in the trial. Grace filed several motions seeking judgment of acquittal on the three CAA counts. Grace’s position is that much of the government's case seeks to hold Grace accountable for actions that took place before the CAA’s knowing endangerment provision was enacted in 1990 (i.e. the federal statute did not exist when Grace operated the Libby mine). Molloy has, appropriately denied the motions as premature. The motions undoubtedly will be reasserted at the close of the government’s case.
The government next called Paul Peronard, the USEPA's on-site coordinator, an expert witness. As an aside, I saw Paul Peronard testify in trial in Birmingham, Alabama, in the ILCO Superfund Site cost recovery trial and he was a very good witness for the government and the private party plaintiffs. Peronard was the USEPA's on-site coordinator in Libby when the town's asbestos contamination gained national attention in November 1999. He has over twenty-three years of experience and has coordinated emergency cleanups on more than 100 spills and hazardous releases. Grace objected to Peronard as he did not have any real experience in asbestos remediation. Peronard was prepared to testify as an expert regarding the hundreds of thousands of air and soil samples collected during the remediation which contained hazardous levels of asbestos fibers. Based upon objections by Grace, Judge Molloy ruled that Peronard could not testify on asbestos hazards or testify as an expert on “knowing endangerment.” Judge Molloy further ruled that Peronard could not testify on a range of science and medical issues. Under Judge Molloy's ruling, Peronard can testify about the decisions he made, but not about why he made them. It is my opinion that this was just and attempt by the government to over reach with an expert witness. Surprise, surprise. The government will have to rely on its other experts to address those issues.
Peronard was the individual who made the referral to the USEPA's criminal division after noting discrepancies between Grace's statements and Grace’s own data tracking the concentration of asbestos fibers in the air.
By the way, the reporting by Tristan Scott is excellent and provides a very good blow-by-blow of the trial. Check out his work (the link is above).
As always, feel free to contact me via e-mail at firstname.lastname@example.org.