Grace Co. Seeks Supreme Court Ruling on Asbestos Prosecution

The W.R. Grace and Co. asked the Supreme Court to review a lower court ruling that strengthened key elements of the federal government’s criminal case against the former asbestos manufacturer. Federal prosecutors have asked the Supreme Court to deny the request for a hearing, saying that the impending and ongoing deaths of witnesses, principally the victims of asbestos contamination at W.R. Grace and Co.’s vermiculite mine in Libby , Montana , demands the prevention of “additional, unnecessary delay”. The government brief in the case claimed that “some witnesses and many victims … are dying from mesothelioma, asbestosis, and other asbestos-related diseases. We cannot escape the fact that people are sick and dying as a result of this continuing exposure. As time passes, more witnesses will be unavailable to testify, and fewer victims will be able to attend the trial.” Grace is asking the Supreme Court to review a 9 th Circuit Court ruling which overturned a number of orders issued in August of 2006 by a district court judge.

Those orders undermined the government’s claims that Grace committed “knowing endangerment”, barring that element of the case because too much time had passed. The “knowing endangerment” charge is at the heart of allegations that Grace executives knew about the dangers of asbestos-contaminated vermiculite at the Libby site, but hid the dangers from workers and the surrounding community. Those orders were overturned in September of 2007 by a partial panel of the 9 th Circuit.

Grace asked the full appellate court to rehear the case, but this motion was denied, and the company asked the Supreme Court to hear the appeal. In their certiorari petition to the Supreme Court, Grace claimed that when they were operating the mine in Libby, the form of asbestos found there was not regulated by the federal government, and that therefore they cannot be prosecuted for failure to disclose their presence under the Clean Air Act. If the Supreme Court declines to hear the appeal, the 9 th Circuit rulings restoring the knowing endangerment portion of the prosecution will stand and the federal case against Grace will, presumably, continue.