Govt. prosecutors oppose w.r. grace appeal

Last month, lawyers for W.R. Grace & Company requested that the United States Supreme Court review the decision of an appellate court which had restored important charges to the government’s criminal case against the company. Government prosecutors are strenuously opposing the company’s request. In a brief submitted by government prosecutors on Friday May 23, the request was made to the high court to deny W.R. Grace & Company’s hearing request. If the prosecutors get their way, the way may finally be cleared for the trial-which has been delayed for almost two years-to begin. In its thirty pages, the brief says, “There”is a strong …need to prevent any additional, unnecessary delay of the trial. 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.” W.R. Grace & Company has requested that the high court review an order handed down by the 9th U.S. Circuit Court of Appeals. The appellate court overturned several decisions which were handed down by U.S. District Judge Donald Molloy of Missoula in August 2006. Molloy’s decisions effective brought the prosecution to a halt, and would have prevented the government prosecutors from charging W.R. Grace & Company with “knowing endangerment,” a violation of the federal Clean Air Act. The problem was, the “knowing endangerment” charge is at the center of the prosecution’s allegations that the company’s top executives knowingly and intentionally concealed the fact that the asbestos-contaminated vermiculite mined near Libby, Montana, was dangerous. A conviction of knowing endangerment carries with a prison sentence of up to fifteen years. Another of Molloy’s decisions which stymied prosecutors was the conclusion that “asbestos” should be defined not according to statutory definition, but according to a regulatory definition enacted by the EPA. Molloy also ruled that he would exclude any evidence which was not limited to the EPA definition, which is much narrower than the statutory definition. In September 2007, the 9th Circuit Court overturned Molloy’s decisions, thus reinstating the charges of knowing endangerment. W.R. Grace & Company appealed and asked that the appellate court hear its case a second time. The hearing was denied, and the company brought its appeal to the Supreme Court. W.R. Grace & Company attorneys are arguing on a technicality. They claim that when the Libby mine was in operation, the federal government did not regulate minerals which were specific to the asbestos contaminating the mine. The attorneys argue that this means the government cannot use the federal Clean Air Act to prosecute the company. W.R. Grace & Company’s petition claims that the government “is trying to convict defendants of violating the Clean Air Act by releasing substances that the government itself has excluded from the list of substances covered by the Act.” The Supreme Count now has to decide whether it will hear the case. If it declines to do so, the 9th Circuit Court rulings will stand, and the case itself may finally begin. If the Supreme Court decides to hear the case, the earliest it can do so is October, meaning many more months of delays will ensue. (Source: Asbestos and Mesothelioma News)