Last summer, we reported that Chief U.S. District Court Judge Donald Molloy disallowed the use of certain evidence against former asbestos manufacturer W.R. Grace & Co. and dismissed several charges that were key to the federal government’s case against the company. On 20 September, a panel of judges for the Ninth U.S. Circuit Court of Appeals restored those elements, clearing the way for the prosecution of six W.R. Grace corporate executives (the seventh–a mining operations manager–died earlier this year of lung cancer). The most important element of the case is “knowing endangerment”–the allegation that the executives were fully aware of asbestos dangers, yet took no action to warn or protect employees and the people of Libby, and purposely conspired in concealing this knowledge. Of the numerous charges of the 49-page indictment dating from February of 2005, that of conspiracy is the most serious. All six surviving defendants could face prison terms of up to five years. Judge Molloy’s actions restricted the use of medical studies, limited the definition of asbestos to the six minerals specifically identified in what he called the EPA’s “civil regulatory scheme,” and dismissed the charge of “knowing endangerment,” essentially crippling the government’s attempts to prosecute the case.
Government prosecutors filed a motion a year ago to delay the trial, pending the appeal of Molloy’s rulings. Now that the appellate judges have restored these elements to the government’s case against W.R. Grace, the case can finally go forward. The trial is scheduled to take place in Missoula, Montana; U.S. Attorney William Mercer, who is prosecuting the case, expects that the trial will last several months. Federal officials consider the case against W.R. Grace to be “one of the most significant criminal indictments in U.S. history.” Last year, W.R. Grace & Company filed an appeal to the Supreme Court of the U.S. over a $54 million-dollar bill it received from the Environmental Protection Agency (EPA), arguing that the EPA “had no authority to hand the company the entire bill, as well as responsibility for future costs.” In a surprise ruling from a Supreme Court that is often seen as pro-corporate, the nine justices rejected the appeal outright and without commentary. According to Solicitor General Paul Clement, the EPA was “within its bounds to seek to have Grace pay for the cleanup.”