April 16, 2009
Below are all blog posts for Thursday, April 16, 2009, in reverse chronological order. Read from the bottom up.
In an abbreviated afternoon session, prosecutor Kevin Cassidy called Libby, Mont., resident Melvin Burnett to the stand. Mr. Burnett told the jury how he and his wife had operated a timber milling operation in certain buildings on W.R. Grace’s former Export Plant. He said that he had seen “shiny” vermiculite all over the property, which he had leased from Grace, including large and small bags of the product that were left by Grace (which were sold to Mel and Lerah Parker). His testimony stirred a flurry of objections, with Molloy consistently ruling that testimony about indoor releases was irrelevant and therefore inadmissible.
On cross-examination, Grace attorney Walter Lancaster discussed how several samples taken at Burnett’s mill had shown low fiber concentrations. When given the chance to redirect, Cassidy had Burnett testify that he and his employees had spent a significant portion, “about half,” of their time outside, walking around on ground he had already testified was contaminated.
At the close of Burnett’s testimony, with an almost jovial tone in his voice, Judge Molloy excused the jury until Monday. The attorneys and parties then stuck around to take care of some housekeeping. United States Attorney Kris McLean estimated that the prosecution might have only four more witnesses next week, and should be close to finishing with their evidence. McLean, Cassidy and Grace defense attorney David Bernick then offered their opinions on the exact procedure for tomorrow’s hearing on Robert Locke’s testimony. Court will resume tomorrow at 8:30 a.m. for testimony about whether Locke perjured himself, and the potential admissibility of his testimony.
–Mark Lancaster – posted 5:20 p.m.
Court adjourned early Thursday afternoon as the government concluded testimony from retired lumber business operator and Libby resident Melvin Burnett and said they had no further witnesses for the day.
After Judge Donald Molloy excused the jury just after 2:30, the counsel approached the court with their concerns and ideas regarding the next couple of days.
The prosecution said they still have not retrieved all the destroyed emails the defense has requested earlier in the month because of manpower and time.
Defense Attorney David Bernick dismissed this argument and said, “There’s evidence that the prosecution hasn’t taken seriously the destruction of evidence. This is a constitutional right and the excuse that something is too hard is not an argument the government can use.”
The prosecution came back and said that it is not that retrieving the emails are too hard, rather the process just will take a little longer. The emails in question include correspondence between witness Robert Locke, a former Grace vice president, and other Grace officials.
Molloy didn’t respond to the prosecution’s final statement and ended the day in court saying, “See you all tomorrow.” Molloy set an April 23 deadline for filing any requests after the U.S. is expected to wrap up their case on Tuesday.
Throughout the early afternoon testimony, the government questioned lay witness Melvin Burnett. Burnett ran a lumber company that was leased through W.R. Grace.
In the late 1970s, Burnett worked for a lumber company called MONIDA (a combination of Montanta and Idaho) that leased land from Grace. Burnett then bought the company and he and his wife Judy ran their own lumber business through the ’90s. Because MONIDA leased its land from Grace, Burnett signed a lease with Grace for the property.
Defendant Alan Stringer signed the paperwork for the lease with the Burnetts. Burnett said that Stringer never mentioned any possible health hazards on the land, nor did he discuss vermiculite or tremolite asbestos with the couple.
After Grace closed the Libby mine in 1990, the company donated the land and property to the city of Libby, which then became the Burnett’s new landlords.
Burnett said that vermiculite was all over the property. All you had to do, he said, was “look around and see the sparkles on the ground.” Burnett and his wife would bag the vermiculite and give it to Mel and Lerah Parker because he said they could use it at their nursery more than he.
“I didn’t think anything about it at the time,” Burnett said.
Burnett said that it was in 1999 when he first started learning about the health dangers of working around Libby area vermiculite. He said he was informed by the EPA and that he actively sought out information via public media.
After early EPA testing, Burnett said that he tried to stay out of certain areas of the property and wouldn’t let employees and customers go near certain spots. Eventually, Burnett moved his business and built new facilities across town just off of Highway 2.
Burnett was diagnosed with asbestos-related diseases six years ago by Dr. Alan Whitehouse.
The defense cross-examined Burnett by entering a letter from the EPA to Burnett regarding the air quality on the property. The letter, dated July 21, 2000, and signed by Paul Peronard, said that the preliminary levels in a particular building, called the “Planer” building, were within OSHA standards.
During the government’s re-direct, Burnett began to address why he felt he needed to leave the property even though the EPA was not requiring the action. The defense objected on the grounds that Burnett is not an expert witness and his opinions of the safety cannot be considered.
Molloy sustained the objection, at which point one visitor shot up from his seat in the galley and said, “This is the biggest f-ing joke I’ve ever seen.”
There is no court Friday, but rather a hearing that begins at 8:30 a.m.. The jury will return Monday morning at 9:00.
The government knew about the dangers of asbestos for many years before taking W.R. Grace to court, W.R. Grace lead defense attorney David Bernick asserted during his cross-examination of Frank Kover. The company also complied with the government’s past information requests, Bernick argued.
Kover, a retired Environmental Protection Agency industrial hygienist, testified on documents from the late 1970s and ‘80s that Bernick presented, many of them EPA internal documents. The attorney sought to show that EPA possessed extensive knowledge of asbestos, describing it as the most regulated substance other than radioactive material during the time period.
“Is it fair to say the government’s knowledge of literature on asbestos by 1976 was vast?” Bernick asked. “Yes,” Kover replied.
Bernick focused on fertilizer seller O.M. Scott’s study of asbestos in the 1970s, using the study as further evidence that the government had asbestos knowledge long ago. The O.M. Scott study taught the government that asbestos could be airborne, and provided new information on vermiculite asbestos and the hazards of asbestos overall, Bernick said. Kover agreed.
Bernick also used documents from Kover’s former employer, EPA’s Office of Toxic Substances, to show that both the EPA and NIOSH — National Institute for Occupational Safety and Health — did their own studies on asbestos. Bernick took special notice of a document describing a 1980 study by EPA representatives who visited both Libby and Grace’s site in Enorre, S.C.
Along with demonstrating the government’s knowledge, Bernick argued that much of this knowledge was supplied by Grace itself, who gave the government “submission after submission” of information from its Libby mine. Bernick referenced a document sent from Grace to the EPA which described cancer and mesothelioma in its employees. The document stated that some newer employees were showing signs of disease.
“Grace cooperated in giving you (the government) information, follow up information, that you wanted to see,” Bernick said.
The attorney also sought to show that government prosecutors did not share all available information about Grace’s cooperation with Kover. Bernick asked a succession of questions focused on whether prosecutors told Kover specific facts about Grace’s cooperation with the government. The witness quietly replied “No” to each one.
“The prosecution showed you very little of the ‘true picture’ that Grace communicated to the government,” Bernick said.
Bernick also brought the hamster study back into conversation, asking Kover if he read the study when he first heard of it. He did not because it didn’t directly relate to his own responsibilities at the EPA, Kover replied. Bernick focused on this point to argue that the government selectively showed evidence to Kover by focusing on a study which he did not “personally know of.”
After Bernick’s cross-examination concluded, government prosecutor Eric Nelson handled the redirect. Nelson’s questioning sought to refute Bernick’s argument that the government had vast asbestos knowledge, referencing a 1973 EPA document which described gaps in the government’s knowledge.
However, objections by the defense poured in after the majority of Nelson’s questions. Bernick mostly objected due to how Nelson stated his questions, which the defense attorney often described as “leading.” Molloy sustained most objections, but appeared frustrated after one particularly long string of questions followed by objections.
“This is getting confusing,” Molloy said before asking Nelson to phrase his questions better.
After the redirect ended, the jury left for lunch break and Molloy took the time to discuss some of the prosecution’s upcoming witnesses. Government attorney Kevin Cassidy clarified the order in which these upcoming witnesses will appear. After this bit of business, Molloy adjourned the rest of the court until 1:20.
–Ryan Thompson (2:01 p.m.)
Prosecuting attorney Erik Nelson started the morning session with the direct examination of Witness Frank Kover, a retired EPA employee. Nelson led the witness through a series of communications between W.R. Grace and the EPA, beginning in April of 1983. Government exhibit No. 340 was introduced without objection and the evidence asked W.R. Grace for additional information on past and present tremolite exposure of workers. W.R. Grace responded in May of 1983 that it needed more time to compile the necessary information, especially time to define the scope of several studies of workers in Libby.
Kover testified that W.R. Grace believed it had submitted all of the required information, especially when the company sent the EPA the results of the McGill University on March 4, 1986. However, this study did not relate to “present” tremolite exposure. After this line of questioning was over, Nelson turned Kover over to the defense.
Defense attorney Bernick began his cross-examination of Kover by asking how many times Kover had met with the government in anticipation of this present prosecution. Kover had met with the government three times, twice to go over specific documents which he would be called to testify on, and once when the subpoena was delivered to his house in 2006.
Bernick established through Kover that the various arms of the government were required to coordinate, including the EPA and other agencies like OSHA and NIOSH. Kover testified that W.R. Grace dealt continually with a wide variety of agencies at the time. Bernick used this testimony to show it was not an issue of conspiracy or fraud, but rather the right hand did not know what the left hand was doing.
Bernick continued his cross-examination on the reporting requirements of the Toxic Substances Control Act of 1976. The Act required W.R. Grace to report and keep records relating to chemical substances and mixtures. Section 8(e) states:
“Any person who manufactures, processes or distributes in commerce a chemical substance or mixture and who obtains information which reasonably supports the conclusion that such substance or mixture presents a substantial risk of injury to health or the environment shall immediately inform the [EPA] Administrator of such information unless such person has actual knowledge that the [EPA] Administrator has been adequately informed of such information.”
Kover testified the reporting section required judgment, which some companies lacked. Bernick introduced two evaluation sheets completed by Kover, which were “corporate dumps.” The companies, neither of which were W.R. Grace, gave the EPA too much worthless information. Although Nelson objected to both exhibits on relevance, Judge Molloy overruled both and the evaluations were introduced into evidence.
Kover further testified the reporting scheme became a problem because either companies reported too much or did not report at all. With that testimony, the morning session concluded.
– Maggie Braun (posted 1:45 pm)
During cross examination of Frank Kover after mid-morning break, Defense attorney Bernick stated that W.R. Grace has consistently volunteered the latest and most up-to-date information to the Government. He compared this flow of “breaking news” from Grace to the breaking news on CNN’s Situation Room with Wolf Blitzer.
Bernick countered the Government’s conspiracy charge by listing exhibit after exhibit of up-to-date “breaking news” correspondence between the EPA and W.R. Grace.
Bernick showed that by the 1970s, the EPA knew that vermiculite contained asbestos, asbestos could be airborne, and asbestos could be harmful to human health. Letters from Grace to the EPA dated 1980 proved that Grace had corresponded with the Government, making specific references to asbestos-contaminated vermiculite. In 1980, Grace provided exposure data from Libby homes regarding friability, air levels, and consumer products contamination. One of the exhibits showed a 1980 initiative by the EPA specifically discussing the Libby mine’s exposure levels and risk estimates of the asbestos-contaminated vermiculite hazards.
Bernick concluded that by 1980, the EPA knew that the Libby asbestos-contaminated vermiculite contained potential hazards to human health.
After showing Kover each of these “breaking news” correspondences, Bernick gutted Kover’s direct testimony by leading Kover to agree that the prosecution team did not provide Kover with a complete and accurate picture of all the information available to the EPA and the information specifically provided by Grace.
Bernick argued that Grace brought itself into the “Situation Room” alongside O.M. Scott by continually providing the necessary data and “breaking news” to the EPA. He illustrated this concept with Grace’s TSCA submission to the Government in 1983.
With a blow to the Government, Bernick asked Kover, “How can there be a conspiracy to defraud [the Government] when Grace and the EPA had interacted 35 years ago about this very subject?”
— Audrey Schultz (posted 1:35 pm)
With the testimony of retired EPA industrial hygienist Frank D. Kover, government prosecutors seemed to be trying to prove that W.R. Grace & Co. withheld information from the EPA between the mid-’70s and early ’80s. The defense worked to show that Grace had not withheld information, but rather different government agencies had made different requests, and Grace could not be held culpable for the government’s lack of internal communication.
Though the main government attorneys Kris McLean and Kevin Cassidy were in court, it was Special Assistant U.S. Attorney Eric Nelson who examined Kover. Nelson took the expert witness through a series of questions related to the adoption and passage of the Toxic Substances Control Act and Grace’s compliance.
Documents showed that in 1982, after Grace received notice from the O.M. Scott fertilizer company that some of its employees who had handled Libby vermiculite had begun coughing up blood, Grace met with Scott scientists to discuss product health risks. Kover said he and the EPA knew at the time about the Scott employees’ health problems, and after pressing Grace for information, received in 1983 a memo from Grace’s Henry A. Eschenbach saying fiber levels at the mine and mill had been safe since 1976.
“Unsafe conditions do not exist in today’s workplace environment,” the memo reads. “We have no reason to believe there is any risk associated with current uses of Libby vermiculite-containing products.”
Despite those claims, Kover said he did not believe that the risk of asbestosis and mesothelioma could be shown to have been mitigated, so he penned a memo requesting information on past and present Libby miners showing signs of asbestos-related disease.
Eschenbach wrote back saying he needed time to compile the data, and three years later, sent Kover a McGill University study. Nelson did not remind the jury of the contents of the study, which found that miners’ chest X-rays from the ’50s and ’60s showed extremely high rates of asbestosis and other asbestos-related diseases.
With little in the way of conclusion or explanation for what was proven in his questioning, Nelson turned Kover over for cross-examination by David M. Bernick.
Bernick opened by asking how many times the witness had met with government attorneys. Kover said there had been two meetings, one in 2006 and one the day before his testimony. Bernick asked whether he had seen before all the documents the government showed him, to which he answered, “Yes.”
Bernick changed direction and asked if Kover was aware of any health risk reports Grace had issued to different government agencies. Kover said he wouldn’t know, since he was only involved in the EPA. Bernick asked whether the government attorneys had shown him any documents other agencies had received from Grace, or if they had even mentioned the possibility of other documents. Kover said he was under the impression that what the government had shown him was all there was.
“But you didn’t do any research to find out if there were documents that the government wasn’t showing you?” Bernick asked in mock disbelief.
“No,” Kover said.
Bernick moved on, bringing new documents into evidence from Kover’s own department of the EPA that showed some of the agency’s problems with the reporting portion of the Toxic Substances Control Act. Chemical companies were required to report any product information — studies, lab tests, etc. — that showed the possibility of substantial health risks. Some companies, the documents said, were dumping tons of useless chemical product information on the EPA, which the agency did not have the time or funding necessary to wade through, while others, like Grace, were underreporting, documents showed.
The EPA then released a guide to help with the problem, but the instructions were unclear, as requesting only information that “may suggest,” “reasonably supports,” or “conclusively demonstrates” substantial risks that should be reported. Bernick said those three qualifications were each completely different and that a company trying to do the right thing would have no idea how much or little information the EPA was asking for.
At that, Molloy called for a midmorning break.
-Alex Tenenbaum (posted 12:25)