Feb. 26, 2009
Day 6: All blog posts filed Feb. 26, 2009, are duplicated here in reverse chronological order. Read from the bottom up.
Direct examination of EPA on-site supervisor Paul Peronard concluded today, followed immediately by the beginning of what promises to be an emotionally charged, and very interesting, cross examination.
As he finished his direct examination testimony, Peronard identified (and testified regarding) several documents received during the time the EPA has been in Libby. These documents, mostly from the late seventies and early eighties, covered diverse topics from work-order type documents detailing cleanup of the school tracks to orders to destroy brooms at the expansion plant to minimize dust in the air. The defense objected vigorously to admission of nearly every one of these exhibits, which forced the prosecution to lay more foundation before Judge Molloy would admit them and allow the jury to see them. When Judge Molloy admitted these exhibits he was careful to explain very clearly the limited purposes for which the jury could use the evidence, namely not to consider these exhibits or Peronard’s testimony regarding them when looking at the “knowing endangerment” or “ambient air” factual issues.
All of the documents admitted into evidence during Peronard’s early afternoon testimony were, in his opinion, documents that should have been submitted to the EPA as it worked through its investigation of asbestos in Libby. In his opinion, as an expert in administering EPA clean-ups, Grace had not met its reporting requirements, which was strong evidence favoring conviction under the obstruction of justice counts of the superseding indictment.
The defense then began its cross-examination of Peronard. Defense counsel David M. Bernick and Peronard immediately began sparring, with Peronard making Bernick’s job difficult by refusing to answer questions with a simple yes or no, instead launching into explanations or problems with the questions Bernick asked. Bernick kept pressing the point that many of the disclosures Peronard had apparently expected during the EPA investigation could have been presented only by older employees such as Alan Stringer digging deep into decades-old memory. Peronard reluctantly admitted that recalling such old events could be very difficult, but insisted that Grace could easily have found older employees with knowledge and memory sufficient to adequately meet the EPA’s information requests.
At exactly three o’clock on the dot, despite the interesting and heated exchange between Peronard and Bernick, Judge Molloy called for a short break, and as always, I had to leave and pass the torch to another student.
- Mark Lancaster
After spending the morning laying groundwork for the prosecution’s obstruction of justice charge against W.R. Grace, expert witness Paul Peronard faced off against defense attorney David Bernick in a bitter battle over his investigation of asbestos in Libby, Mont.
As Bernick vigorously questioned the legitimacy of the EPA’s research techniques, Peronard furrowed his brow and became increasingly flustered.
“Your words, I think, are nonsense,” Peronard said, after an argument over Grace’s waste disposal techniques, causing Judge Molloy to remind all involved about politeness in his courtroom.
The defense’s cross-examination focused on Peronard’s accounts of mine manager Alan Stringer and an EPA questionnaire given to Grace. Bernick argued that Peronard’s conversations with Stringer were undocumented, and his agency’s questionnaire was not specific enough to warrant obstruction of justice.
At one point, over the unsuccessful objection from the prosecution, Bernick unveiled a series of maps detailing the complete asbestos sampling data in Libby. The defense’s maps showed an overwhelming amount of green, or non-detectable asbestos locations, intermingled with a comparably small amount of red, or detectable asbestos locations.
The prosecution had used similar maps previously, albeit without green, non-detectable spots.
Court is expected to resume Monday at 9:00 a.m.
- Nate Hegyi
Prosecutor Kevin Cassidy continued his questioning of Paul Peronard this afternoon. Cassidy showed Peronard a series of documents, mostly relating to testing for tremolite asbestos around Grace, as well as a letter from Grace to the EPA. This questioning appeared to be designed to show that Grace did not produce all the documents needed by the EPA. A flurry of objections came from defense attorneys during the questioning, all of which were sustained by Judge Molloy. Molloy stressed several times that the documents are only relevant to the obstruction of justice charge in the case, and cannot be used toward any of the other charges.
After Peronard identified and described several documents, Grace attorney David Bernick began a vigrous cross examination. Bernick described the EPA’s investigation as a “gotcha,” claiming the EPA used its lawyers to ask Grace employees questions based on memory rather than simply getting relevant documents from the corporation. The court took a short recess at 3:00 p.m.
The government produced evidence through Paul Peronard’s testimony today to support the conspiracy charge in Count I, and the obstruction of justice charges in Counts V and VI. While not necessarily explicit, the government’s themes were the ways Grace impeded and obstructed justice.
The prosecution first offered Goverment’s Exhibit 714, a map littered with colored dots: red dots, showing areas of residential and/or business contamination; yellow dots, showing W.R. Grace & Co. areas of contamination; and green dots, showing no asbestos contamination. With this exhibit, the government encouraged Peronard to expand on the breadth of the EPA’s investigation, response, and clean-up efforts.
After presenting the map and listening to Peronard’s elaboration on the EPA’s efforts, the government switched gears and focused on how W.R. Grace & Co. may have impeded or obstructed those efforts. The government introduced Government’s Exhibit 629, the EPA’s second CERCLA 104(e) Request For Information, and W.R. Grace & Co.’s responses dated February 22, 2000. Stated in interrogatory style and essentially a request for production, the EPA’s 104(e) Request sought information about the history of Grace’s policies, procedures, testing, storage, access to, and exposure records of any vermiculite and tremolite asbestos. Peronard testified that he relied on Grace’s answers to initiate the EPA investigation, to identify priorities, and to focus on heavy traffic areas with high vermiculite and tremolite concentration.
The government identified several specific 104(e) questions and responses that will be crucial to the jury’s decision on the conspiracy and obstruction charges. First, the prosecution focused on the EPA’s question of whether W.R. Grace knew that there was tremolite in the vermiculite ore. The exhibit showed Grace’s answer; yes, the company was aware of that when it bought the mine in 1963. However, it also stated that the average concentration of tremolite after the vermiculite ore was milled and concentrated was 1% or less.
Second, the government focused on a question regarding the availability of vermiculite concentrate to the public. The response, written by Alan Stringer, stated that Grace had donated vermiculite mill coarse tailings for use in making the Libby High School running track. Peronard testified that he relied on this answer and was surprised when he discovered W.R. Grace & Co. had additionally placed vermiculite mill coarse tailings at the Libby Junior High School running track and at the Plummer Elementary School ice skating rink.
Additionally, the government showed the EPA’s question of whether many people left work with dust on their clothes. W.R. Grace & Co. replied “No.” Grace employees did not “regularly” leave the mine with vermiculite or tremolite dust on their clothes. They had company issued coveralls and on-site laundry services. Additionally, a 1979 company brochure stated workers should clean their clothing. Peronard testified that W.R. Grace & Co.’s response delayed his efforts to identify workers and families who had been exposed.
In the same sequence, the government focused on a question regarding the action taken by W.R. Grace & Co. to prevent the transfer of dust from the mill to the home. Specifically, the Government concentrated on Rainy Creek Rd., the road to the mine. W.R. Grace & Co. had replied that it treated Rainy Creek Rd. However, Peronard testified that in 2000, he drove up Rainy Creek Rd. and found that Grace had failed to control the dust. Moreover, he testified that W.R. Grace & Co. had used the tailings to de-ice and “sand” the road. Peronard stated that W.R. Grace & Co.’s reply delayed the EPA’s response to this area, because the EPA had not identified Rainy Creek Rd. as a top priority.
The government closed the morning testimony by showing the EPA’s question regarding whether W.R. Grace & Co. had ever gathered air and environmental media sampling information. The reply stated, yes, but the sampling was limited. Peronard testified he later found additional pre-existing data from W.R. Grace & Co., which it had failed to disclose.
The government will most likely expand on the information found in Exhibit 629 in an attempt to show that Grace delayed and obstructed the EPA and its investigation.
— Audrey Schultz
Prosecutor Kevin Cassidy continued to show documents to Paul Peronard, asking if he remembered examining each one. Most of the documents related to air and soil testing around Libby. The documents mainly dated from the late 1970s and early 1980s. Defense attorneys filed a flurry of objections as Peronard testified, most of which were sustained by Judge Molloy. However, Molloy stressed during Peronard’s testimony that these documents cannot be used as evidence to prove that any material, such as tremolite asbestos, was released into the Libby air.
The questioning focused on a letter the EPA sent to Grace asking for information about the company’s operations and actions in the past. The letter, known as a “104E,” is the EPA standard request for information and is designed to give the agency a better idea of how and where to focus its investigation.
Kevin Cassidy of the prosecution highlighted Grace’s response to the EPA inquiries, repeatedly asking Peronard how those responses influenced and directed EPA efforts. Peronard was prohibited from disclosing anything learned through hearsay or from giving expert testimony, such as possible health implications of asbestos, or the data derived from air or soil samples.
Several EPA questions in the 104E asked Grace where they stored vermiculite, whether those storage areas were secure from public access and what they did to control dust emissions from those sites.
Grace reported that as much as 40,000 tons of vermiculite per day were stored in silos near the screening plant in Libby, and that other products from the mine were also stored in the area. The screening plant, along with other sites used to process and store the vermiculite, was fenced off and behind locked gates, but vermiculite was given to company employees without charge.
Peronard said the EPA wanted to know if only company employees were taking the vermiculite, or if the public had access to it. ”Could people get the stuff on their own if they wanted it?” he asked.
The company responded that pedestrian traffic into these sites was possible and had likely occurred. Peronard said this was part of how the EPA gauges the level of exposure to a community, answering the question, ”Is it limited, or something that’s spread throughout the community?”
The company also reported that dust from these sites became a concern, that the dry mill was exceptionally dusty and that they tried to curtail the dust by converting the dry mill to a wet mill, where they used water to reduce the dust.
The EPA also wanted to know if the company had done any sampling to determine the content of that dust. Grace responded that it had sampled the air and soil and found asbestos contaminants at an average concentration of one percent or less. With the results of these tests in their hands, the company closed the mine in 1990.
Peronard, however, said the company’s sampling was insufficient, and the EPA saw the need to conduct its own tests. Through these tests, the EPA found tremolite in places it shouldn’t have been, said Peronard, and that’s when the agency knew that systematic, non-random sampling was necessary to understand the scope of contamination.
Specifically, the EPA decided to focus its sampling on “high-traffic areas.” These areas are what the EPA calls exposure pathways, “places where people could come into contact” with vermiculite, Peronard said.
One of those areas was the access road to the mine, Rainy Creek Road. Grace said that “the dust coming off the access road was problematic.” The company attempted to control this dust by wetting down the road.
Also problematic was Grace employees leaving work in dusty clothes. The company said it took steps to clean the dust off the workers.
Peronard said these instances were potential exposure pathways, and the EPA had to investigate the various ways dust might have been carried from the mine and into the greater community.
– Will Grant
Taking the stand again as the government’s expert on-site coordinator, Paul Peronard dove into greater detail about the clean-up efforts at former Grace sites and several Libby schools. Prosecution attorney Kevin Cassidy took care to stay within Peronard’s area of expertise and started to lay the groundwork for the prosecution’s obstruction of justice charge using a Grace letter that halted the EPA’s clean-up efforts.
The letter, admitted as government exhibit 636, voiced Grace’s disapproval with the clean-up efforts and closed access to their Kootenai Development Commission properties. Peronard maintained that the letter was the first time he had heard any disagreement from the company, and before the letter, the only points of concern dealt with cost and liability issues, not clean-up procedures. The letter also claimed that gaining access to the mine site was difficult, something Peronard disputed.
“There was nothing difficult about working at this site other than that it gets cold in the winter,” Peronard said.
Rather than disposing of contaminated material at the old mine site as originally planned, Peronard said the letter forced the EPA to change their plans and store tailings in an old shed at the screening plant. According to Peronard, the nearest acceptable disposal site other than the mine was in Spokane, Wash., and transferring material there would have been more costly and potentially hazardous.
Peronard said the Grace letter cost the EPA time and money, putting its operations behind almost a year because of the difficulty of working through the cold Montana winter.
“It put us in a big circle,” he said of the letter. “It just threw a wrench in all the operations we had planned for that summer.”