April 29, 2009
Below are posts for Wednesday, April 29, 2009, in reverse chronological order. Read from the bottom up.
Wednesday afternoon’s court proceedings heard the testimony of defense witness Katheryn Coggon, a Denver-based lawyer who worked as outside counsel for W.R. Grace following the EPA’s 104E request for information in 1999.
According to Coggon, a 104E is a process in which the government seeks information from a company related to an ongoing Superfund cleanup. “It’s a government issued request,” Coggon said.
Originally from Havre, Mont., Coggon (maiden name Jarvis) was an all-star track athlete, who won 10 state championships in cross-country in high school during the early 1980s, often racing at the Libby high school track. She now works for the Denver-based law firm Holme Roberts & Owen LLP.
Coggon testified Wednesday that Grace received its first 104E request letter from the EPA on Dec. 7, 1999, and a second just one month later on Jan. 6, 2000, right after Grace got the amendment for the first request.
“[The request was] very significant, thousands of boxes of documents,” Coggon said. Ultimately, the EPA requested roughly 2.5 million documents, which took Grace two years to get together from locations across the country.
Coggon saw this detailed request as being very unusual. “It looked much more like a discovery request, like what you would see in a civil litigation request,” she said, as if the EPA wanted Grace to “admit that there was a problem.”
Following Bernick’s direct examination, attorney Kevin Cassidy proceeded with the prosecution’s cross-examination. Cassidy mentioned that he and Coggon attended the same law school at Northwestern College of Law at Lewis and Clark College.
“You want to race her?” Molloy asked Cassidy, drawing strong laughs from the courtroom.
Coggon’s testimony concluded at roughly 4 p.m., leaving plenty of time for the defense to address other overriding issues, including the plan for closing arguments and the continuing situation with defendant William McCaig, whose attorney’s are still pushing for his immediate acquittal.
The defense plans to have their side of the case wrapped up by Wednesday of next week. Molloy has still not made a ruling on the Rule 29 motion to dismiss. Court will be in recess until 8:30 Thursday morning, when three more witnesses for the defense are scheduled to take the stand.
– Chris D’Angelo (posted 9:14 p.m.)
Yesterday, Judge Molloy ruled to not dismiss the case for prosecutorial misconduct. Law students Nick Lofing and Christopher Orman have been following the issue, studying the case law, and have written a brief article on Judge Molloy’s order. The order reveals Molloy’s views on the judicial process and provides remarkable insight into how he perceives the central issues of this case.
Defense attorneys put 4 witnesses on the stand and introduced 14+ exhibits this morning to demonstrate how W.R. Grace acted to reduce dust and asbestos exposure at the Libby mine and mill over the years of its operation by Grace.
First was Randy Geiger, environmental engineer for Grace, who testified to Grace’s continuing and successful efforts over the years in reducing asbestos fiber exposure to Grace employees throughout the mine and milling operations. Grace attorney Walter Lancaster performed the bulk of direct examination introducing many exhibits showing reduction of asbestos exposure due to Grace efforts from 1976 – 1985.
Carolyn Kubota next questioned Geiger. First she got Molly’s approval for use of a demonstrative exhibit, a drawing of the Libby mine and mill operation on foam board. Kubota then asked Geiger about a string of exhibits showing pollution control efforts undertaken by Grace and approved by her client, Jack Wolter. As each project was discussed Kubota circled the area in which improvements were made on the drawing. At the end of her questioning, with circles all over the map, Kubota asked her question: “What parts of the Libby operation were modified to reduce dust?” The obvious answer is exactly what Kubota got from Geiger: “Pretty much all of if.”
Last, William Coates, attorney for McCaig elicited from Geiger that McCaig’s position with respect to asbestos was to “minimize dust exposure to employees”, and that this was a top priority, even at the expense of production.
Government attorney McLean’s cross of Geiger seemed aimed at showing that even though Grace took steps at the site, it was not enough. While vacuums were set up to vacuum out the trucks between shifts, nothing was provided to clean worker boots before going home. While Geiger cooperated with NIOSH and MSHA studies, he failed to inform either agency about his tests on the running track. And while reductions in fiber exposures were demonstrated, there was still a 1982 worker cleaning rail cars prior to loading with vermiculite registering .38 twa, which is “pretty high” according to McLean.
Lancaster’s redirect elicited testimony that asbestos fiber exposures were reduced from .88 in 1979 to .14 in 1984, and to .004 – .009 by 1989. And in an attempt to negate McLean’s cross, asked Geiger if Grace ended the practice of loading box cars in 1982. Geiger reported that he didn’t remember.
The next witness called was Michael McCaig, son of William McCaig, who grew up n Libby and visited the mine and mill while his dad worked there. Elizabeth Van Doren Gray questioned McCaig in her southern drawl, asking about what schools Michael attended in Libby (all but one of them) and about how active his parents were in the Libby community. Final questions revealed that McCaig’s last position for Grace was at the Enoree, SC expansion plant, from which he was involuntarily terminated.
Bernick next called Dale Cockrell, attorney for Kootenai Development Corp, back to the stand. Bernick first reoriented the jury to the time period when Grace bought the stock of KDC from Owens and Wolter, thereby becoming once again the owner of the mine properties. Bernick’s questions seemed aimed at pointing the finger at EPA Region 8 personnel as having it in for Grace. Bernick’s last question was if Matt Cohen, attorney for EPA, knew about the potential sale of KDC to Grace. Cockrell answered yes, and that Cohen told him to go ahead with the sale as EPA wanted to deal with Grace.
The last witness of the morning was put on the stand for the sole purpose of introducing an August 1992 Draft Environmental Assessment report written in response to the plan for closing the Libby mine. Patrick Plantenberg, reclamation specialist for MT Department of Environmental Quality was one of the authors of the report, but Bernick did not question him about its contents. That he said would come later with another witness. A second piece of evidence was admitted, a report for file written by Aimee Taylor, MT Department of Health and Environmental Sciences with the subject of WR Grace Vermiculite Mine Road. Again, no questions were asked about the exhibit.
None of the last three witnesses were cross examined, and no redirect occurred.
Just before the noon break, and after the jury left the courtroom, the attorneys and Judge Molly discussed the remainder of the witnesses and the rest of the trial. The defense has 4 lay witness and 3 expert witnesses left to call and expects to close next Wednesday. Closing arguments could occur next Wednesday, Thursday or Friday. Further, finalization of jury instructions will occur in court and not in chambers as is usual. Molloy cited reasons of transparency for this decision, saying that in all his years as a judge and as a lawyer before that, this is the first time he has looked out at a courtroom and seen people in it.
Some discussion was had from the government and the defense as to when Ms. Coggon, outside attorney for Grace who was the source of information for the 104E response, would testify. She is ready to be called today, but the defense found out about her at midnight last night and wants more time to prepare. The final answer was that Coggon would testify at 3:00 this afternoon.
Witnesses to come:
Coggon– outside council for Grace; source of information in preparing 104E response
Corcoran – WR Grace employee
Moeller – WR Grace employee
Dr. Suresh Moolgavkar – epidemiologist
Dr. Richard Sellman – Missoula pulmonologist to discuss x-rays and refute Dr. Whitehouse’s testimony
Dr. Anderson – risk assessment expert
–Janet Harrison (2:40 pm)
Through the questioning of four witnesses, the defense showed that Grace took action to monitor and reduce workplace dust, that company executives weren’t afraid to take their families to the mine, which they wouldn’t have done if they had known the dangers of breathing Libby dust, and that a copy of an environmental assessment was sent to Mel and Lerah Parker, who bought former Grace property.
Randy Geiger, the engineer and overseer of Grace’s air quality tests, testified that Grace took a series of steps to reduce workplace dust. Dust mitigation efforts were directed at different stages of processing the ore and at different locations on the mine property. Ventilation was a primary concern, Geiger said, and the company installed air filters and ducts to give workers cleaner air to breath.
On cross-examination of Geiger, prosecuting attorney Kris McLean suggested the ventilation was ineffective. “Are you familiar with the phrase ‘The solution to pollution is dilution’?” McLean asked Geiger.
Geiger said he knew the phrase, and McLean said the ventilation system was nothing more than diluting the air. But Geiger said there was also filtration of the air. Outside air was brought in, dusty air was emitted outside the workplace and outgoing air was filtered, Geiger said.
Defense attorney Walter Lancaster was brief in his redirect examination of Geiger and sought only to show that Grace’s dust controls were effective and made the workplace safer. Lancaster referred to test results that showed acceptable levels of fiber concentrations.
“All the numbers (fiber concentration levels) are a fraction of PEL’s (permissible exposure levels) and internal goals, isn’t that right?” Lancaster asked Geiger.
“Yup,” Geiger said.
The defense then called Mike McCaig to the stand, son of former Grace manager and defendant in this case William McCaig. Mike McCaig is a computer programmer from Simpsonville, South Carolina. He grew up in Libby and graduated form Libby high school in 1989.
Through Mike McCaig’s testimony, the defense showed that William McCaig brought his family up to the mine, used mine products in the family garden and wouldn’t have done so had he known the health risk of breathing dust from the contaminated vermiculite.
Defense attorney Elizabeth Van Doren Gray also wanted to know about Mike McCaig’s high school experience. McCaig said he was on the football team and played in the school marching band. Van Doren Gray wanted to know how he could play on the team and in the band at the same time.
“I’d have to run to the locker room, pull, off my shoulder pads and run back out on the field,” McCaig said to the bemusement of the court.
“Did this happen every game?” Van Doren Gray asked.
“Every game when the band had to play,” McCaig said.
The defense also called Dale Cockrell to the stand, who testified earlier in this trial. Cockrell is an asbestos lawyer from Kalispell, Mont., and represented Kootenai Development Corporation in the sale of former mine properties.
Defense attorney David Bernick questioned Cockrell about his interaction with the Environmental Protection Agency. Cockrell said EPA promised him immunity from liabilities associated with the mine in exchange for using the mine as a dump site for contaminated mine products and tailings. But Bernick pointed out that this agreement never came to fruition and that EPA didn’t hold up its end of the bargain. Cockrell agreed that the agreement was never finalized and that KDC stock was sold to Grace. Bernick also noted that EPA recommended the sale and looked forward to working with Grace.
The defense’s final witness of the morning was Patrick Platenburg of the Montana Department of Environmental Quality. Platenburg began working for the DEQ in 1995 and worked for the Department of State Lands from 1987 to 1995. He was involved in the 1993 draft environmental assessment of cleaning up the Libby mine site.
He testified that Libby resident and owner of former mine property Mel Parker was concerned about cleanup of the mine site and his property. Mel and Lerah Parker bought property that was the former Grace screening plant and full of contaminated vermiculite tailings. The prosecution claims that Grace failed to disclose the health hazards the Parkers faced.
Bernick presented a document from 1993 that acknowledged a phone conversation between Platenburg and Parker, and asked how Platenburg responded to this conversation. Platenburg said he sent a copy of the draft environmental assessment to the Parkers.
Platenburg’s testimony rebuts the prosecution’s charges of knowing endangerment, Count III of the superseding indictment. The prosecution charges that Grace put the Parkers in imminent danger when the company sold them the ex-screening plant.
–Will Grant (posted 2:45 p.m.)
Judge Donald Molloy said Tuesday that the W.R. Grace case should go to the jury by the end of next week.
The atmosphere in court was relaxed Tuesday afternoon as Molloy told the jury he expects the proof phase of the case to conclude next Wednesday, after “three or four” more lay witnesses, and perhaps one more expert. Following that, Molloy said he expects to be able to put the case in the jury’s hands by the end of next week.
After apologizing for not listening to the lawyers’ concerns about the day’s schedule, Molloy dismissed the jury and called counsel for both sides to his chambers. Several minutes later, the lawyers filed out, gathered their things and left the courtroom.
Court is in recess again until 3pm, when Molloy said one more witness will testify for, he expects, “about an hour”.
–Daniel Doherty (posted 1:46pm)
Defense attorney Walter Lancaster continued questioning of former W.R. Grace employee Randy Geiger. Mr. Geiger was in charge of pollution control and conducted air quality sampling at Libby from 1976 to the mid 1980s. Mr. Lancaster’s questioning focused on how air samples were taken and the results of those tests. A number of pollution control reports, which were conducted monthly by Grace, were admitted without objection. These reports contained summary tables, which Mr. Lancaster used in an attempt to show that fiber levels were low in Libby and mostly within OSHA standards. The reports were all addressed to defendant William McCaig. Mr. Geiger testified that he took Mr. Wheeler, a NIOSH employee, on a tour of the Libby mine site and that side-by-side samples were taken. A letter from Mr. Wheeler thanking Mr. Geiger for taking samples was introduced without objection (Defense Exhibit 18845).
Mr. Lancaster introduced a letter through Mr. Geiger entitled Job Priority Maintenance, which stated “Bill McCaig has reaffirmed his position that any work which related to minimizing dust exposure to our employees should be given top priority…” Mr. Lancaster’s questioning elicited that Mr. Geiger had always cooperated with the Government and had never been told to do otherwise. He also elicited that Mr. Geiger used Grace asbestos products in his garden to aerate the soil and that he never felt such products posed an imminent danger.
Ms. Kubota took over questioning for the defense and focused on engineering improvements made by Grace. Ms. Kubota used a diagram of the Grace mine and mill site for demonstrative purposes (Defense Exhibit 14083). As an attorney for defendant Jack Wolter, she attempted to elicit testimony from Mr. Geiger to show Wolter’s involvement in improvements at the mine site. These engineering improvements ranged from a wet mill modification system, which Mr. Geiger characterized as a filter system that used water to reduce dust levels, to temporary ventilation systems installed in rail cars while workers loaded Grace products into them. Ms. Kubota introduced a number of exhibits, without objection, in an attempt to show that the modifications were costly and that they were approved by Mr. Wolter. Ms. Kubota elicited from Mr. Geiger that he believed the improvements were effective in reducing dust levels. A report entitled Pollution Control, Libby Personnel Sampling Data (Defense Exhibit 14095) stated that there were no violations of the 2.0 f/cc standard during 1979 on mine equipment and that rail car loading operation fibers fell from 3.0 f/cc to 1.0 f/cc.
Ms. Kubota’s direct examination was temporarily stopped by Judge Molloy for a 15 minute recess.
The first full day of hearing the defendants’ case began without a ruling on motions to acquit or to dismiss the charges against any individual defendants.
Before the jury entered the room, defense attorney Thomas Frongillo asked Judge Donald Molloy to clarify his ruling on evidence related to the testimony of Robert Locke, a problematic witness for the prosecution. Frongillo was concerned that some of the documents introduced during Locke’s testimony might have negative effects on his client, Robert Bettacchi.
Molloy said all the documents introduced during Locke’s testimony would be remain because otherwise it would be too confusing for the jury. Then he appeared to open the possibility of striking some evidence when he asked Frongillo if he had specific documents in mind. Frongillo singled out documents relating to the aborted sale of the Libby mine property to 3M. Molloy asked Frongillo to let his clerk know what evidence specifically is of concern.
Once the jury was seated, defense attorney Walter Lancaster called Randy Geiger back to the stand. Geiger is an environmental engineer who established the Grace air sampling program in Libby beginning in 1977. He testified that all of Grace’s sampling was according to National Institute for Occupational Safety and Health standards. Geiger gathered both “engineering,” or site, and “personnel” asbestos fiber samples and sent monthly reports to the Grace management.
Lancaster submitted a number of these reports into evidence from 1977 to 1983. All the reports had summary tables that Lancaster used to emphasize places around Libby where Grace reported low fiber levels. All the results were time-weighted averages, where exposure is averaged over a period of time and so would not show any peak levels. Geiger said the samples were measured by counting fibers under a microscope.
At the time, the federal Mine Safety and Health Administration was in charge of monitoring companies like Grace. Geiger said MSHA representatives came to the mine a number of times and he did side-by-side sampling with them so they could compare results.
Many numbers in the displayed reports were not highlighted by the defense, such as fiber levels of 1.5 to 3 fibers per cubic centimeter measured in 1977, when the OSHA exposure limit was still 2 fibers per cubic centimeter. A number of years later, OSHA would lower the limit to 0.2 fibers per cubic centimeter.
Lancaster appeared to want to show that Grace had sampled areas of the community and found asbestos fiber levels to be low and that this information was sent to executives including defendants Jack Wolter and William McCaig. He also emphasized that Geiger always cooperated with the government, even displaying an MSHA letter thanking Geiger for his cooperation.
“Did any of your bosses ever tell you that you shouldn’t cooperate with the government or that you should try to hinder their sampling?” asked Lancaster. Geiger answered, “No.”
Carolyn Kubota took up questioning to draw out testimony in support of her client, Wolter. Kubota focused on engineering improvements Grace made to their Libby operation in order to reduce dust. These included the addition of a wet mill, and equipment to reduce dust in trucks and boxcars. Geiger confirmed that Wolter approved all such improvements. Just as she was getting ready to pick yet another improvement, Molloy interrupted to call the morning break.
–Laura L. Lundquist (posted 11:30 a.m.)