Judge dismisses part of Grace charge

BILLINGS – A federal judge has dismissed part of a criminal charge against W.R. Grace & Co. and some former top officials that alleged they knowingly endangered miners and area residents through asbestos exposure in Libby, Mont., site of the company’s former vermiculite mine.

U.S. District Judge Donald Molloy concluded that the statute of limitations – the time allotted under federal law to prosecute the case – had expired.

A federal grand jury indicted Grace and seven former top officials in February 2005, accusing them of conspiring to conceal health risks posed by the company’s now-closed vermiculite mine.

Molloy’s ruling, dated last week, is a partial victory for the defense, which has been attempting to get a conspiracy charge thrown out or limited. The conspiracy charge itself was not thrown out, but the allegation that the defendants “knowingly endangered” residents and miners is a major foundation of that conspiracy charge.

Hundreds of people in the northwestern Montana town have been sickened, some fatally, by exposure to asbestos. The vermiculite mined at Libby contained harmful tremolite asbestos. The mine closed in 1990.

Several defense attorneys declined to comment Tuesday, as did the U.S. attorney’s office in Billings.

Justice Department spokeswoman Cynthia Magnuson said, “We are considering our options at this point” and declined to say more.

The case is set for trial in September, though defense attorneys have sought to have that date pushed back. The defense also has asked for separate trials for the named defendants.

Conspiracy, Molloy wrote, requires an “overt act” within the limitations period. The clock on the five-year statute of limitations began in November 1999, court records show.

The defense argued the indictment didn’t allege the defendants had undertaken any overt acts that knowingly endangered residents or employees from November 1999 through February 2005. Prosecutors countered with more than a dozen claims they said helped indicate otherwise.

Molloy, however, wrote that several of the claims raised by the government spoke more to allegations the defendants concealed wrongdoing from the Environmental Protection Agency, which was investigating the contamination, or acted to limit their liability.

As a result, they “cannot be construed as alleging acts in furtherance of the knowing endangerment object,” he wrote.

An accusation that Grace failed to completely remove vermiculite contaminated with tremolite asbestos from school running tracks and a skating rink over roughly a 19-year period, ending in 2000, also do not allege overt acts, Molloy wrote.

“The purpose of the overt act requirement is ‘to manifest that the conspiracy is at work and is neither a project still resting solely in the minds of the conspirators nor a fully completed operation no longer in existence,’ ” he said.

“The failure to fully abate the schoolyard contamination more plausibly suggests a completed operation than a conspiracy still at work,” he wrote.