By KATIE OYAN Associated Press Writer
© 2007 The Associated Press
HELENA, Mont. — A federal appeals court has reversed a number of pretrial rulings in the government’s asbestos case against W.R. Grace & Co.
The three-judge panel of the 9th U.S. Circuit Court of Appeals on Thursday overturned a lower court’s ruling that federal prosecutors could not allege the company and former top officials conspired to “knowingly endanger” miners and residents of the town of Libby by exposing them to asbestos.
U.S. District Judge Donald Molloy in Missoula had ruled the time allotted under federal law for the government to pursue that allegation had expired. He said the government failed to allege the defendants committed an overt act to knowingly endanger others within the five-year statute of limitations that began in 1999.
In its decision, the panel disagreed, saying the lower court incorrectly interpreted the federal statute.
“The district court dismissed the knowing endangerment object in the original indictment as ‘time-barred’ because it failed to allege an overt act within the statue of limitations, not because the indictment was untimely filed,” the three-judge panel wrote. “The district court erred.”
Bill Mercer, the U.S. attorney for Montana, praised the reversal and others issued Thursday.
“In reversing several pretrial rulings by Judge Molloy, today’s decision by the 9th Circuit is an important victory for the United States,” Mercer said in a statement.
Calls seeking comment from a Grace attorney in Missoula and from Helena lawyer Ron Waterman, representing defendant Harry Eschenbach, were not returned.
The case involves public exposure to asbestos in the Libby area, where Grace used to operate a mine.
A 2005 indictment charged Grace and seven of its former managers, one of whom died in February, with conspiring to conceal health risks posed years ago by the company’s Libby vermiculite mine, closed since 1990. Hundreds of people in Libby have fallen sick, some fatally, from exposure to asbestos in vermiculite.
On Thursday, the appeals court panel also reversed a decision by Molloy regarding the definition of asbestos.
According to the panel’s written opinion, Molloy interpreted asbestos to mean the six minerals covered by the U.S. Environmental Protection Agency’s “civil regulatory scheme,” and excluded evidence of asbestos releases of other asbestiform minerals.
“This ruling eliminated from trial evidence of releases of 95 percent of the contaminants in the Libby vermiculite _ which are asbestiform minerals but fall outside of the six minerals in the civil regulatory definition,” the panel wrote.
The panel ruled Molloy improperly limited the term, saying asbestos need not include “mineral-by-mineral classifications to provide notice of its hazardous nature, particularly to these knowledgeable defendants.”
The panel also overturned Molloy’s decision allowing Grace to use an affirmative defense established by the Clean Air Act for air pollutants released under “National Emissions Standards for Hazardous Air Pollutants.”
The government argued that no such standards applied to Grace’s operations in Libby so compliance was impossible. The lower court rejected that argument, finding that a standard of “no visible emissions” for asbestos applied to Grace’s Libby operations.
The panel disagreed.
“The plain language of the statute makes clear that the affirmative defense simply doesn’t apply in this case,” the panel wrote. “The district court’s order to the contrary leaves us with a ‘definite and firm conviction’ that it got the law wrong.”
Thursday’s rulings were among two appeals stemming from pretrial decisions. In July, a 9th Circuit panel reversed a ruling by Molloy that required federal prosecutors to produce a pretrial list of non-expert witnesses. The panel said the district court had “exceeded its authority.”
The trial had been tentatively scheduled for September but that has since been postponed. A new trial date has not been set, Mercer said.
“The grand jury indicted this case in 2005,” Mercer said. “With the resolution of both appeals brought by the government, we look forward to trial.”
Activist Gayla Benefield of Libby called Thursday’s rulings “probably the biggest step forward” in the case for people sickened by asbestos from the mine.
“They ruled about 95 percent in our favor,” she said. “That absolutely is fantastic. That’s more than we could have hoped for _ way more.”
Benefield said both of her parents died of asbestos-related illnesses and many other family members and friends are sick. They deserve closure and accountability, she said.
“Now we have a fighting chance,” she said. “Now we’re on an even ground.”