andrew schneider investigates

June 11, 2009

Health risks from silver nanoparticles a growing threat to consumers and workers.

Silver nanoparticles, untested for safety, are being used in a growing number of children’s toys, babies’ bottles, cosmetics, dishwashers, underwear and hundreds of other items.
A report issued today says that consumers and workers who make the products may be at risk.

Silver nano particles   Photo ACA

Silver nano particles Photo ACA

The report, authored by Friends of the Earth and Health Care Without Harm Europe, details what they call “the growing public health threat posed by nano-silver particles in consumer products.”

“What we’ve learned is alarming,” said Ian Illuminato, one of the report’s authors.

“Major corporations are putting nano-silver into a wide variety of consumer products with virtually no oversight, and there are potentially serious health consequences as a result. The workers who manufacture these products, the families that use them, and the environment are all at risk.”

Human consumption of silver is not new and medical historians have traced its health benefits back

Ian Illuminato, Friends of the Earth

Ian Illuminato, Friends of the Earth

more than a century. At that time, the literature reports, people had ready access to beneficial silver in their diet because it was plentiful in surface and ground waters.

“What we’re concerned about is when the silver is scaled to nano size because evidence shows that it is far more potent. That potency – the impact on human health – is what is we don’t yet know,” Illuminato told me.

His concern is shared by other scientists who also worry that nanosilver doesn’t distinguish between good and bad bacteria. It kills all bacteria, even the good bacteria that humans and animals need to survive.

“We are playing with fire, especially at a time when anti-bacterial resistance is an ever increasing medical problem globally,” said report co-author Dr. Rye Senjen, of Australia.

“Do we really need to coat cups, bowls and cutting boards, personal care products, children’s toys and infant products in nano-silver for ‘hygienic’ reasons?” he asked.

The  Korean manufacturer Samsung made the first clothes washer with a nanosilver-coated drum and said it would kill over 600 different bacteria.

Nanoparticles are one billionth of a meter in size or, as one scientist told me at a nano-in-food conference this week in California, “Slice a human hair lengthwise into a 100 slivers and a single one of those is what we’re dealing with. We are manipulating single molecules and atoms.”

Andrew Maynard

Andrew Maynard

The Project on Emerging Nanotechnologies, one of the best known centers for nanotech policy research, presented testimony before Congress last year and cautioned that hundreds of products with nano particles are on the market, with three to five new ones added every week.

Andrew Maynard, the lead scientist for the Project, told me in an telephone interview from the Regulating Nanotechnology in Food and Consumer Products conference in Brussels yesterday, that the report raises some uncertainties that must be addressed.

“There is no indication that silver at the nano scale goes wild in the body. However, it is known that silver becomes more toxic at the nano level,” Maynard explained, adding, “That does not mean it always does more damage.

“More research must be done.”

A coalition of consumer protection, public health and environmental groups filed a petition with the Environmental Protection Agency demanding the agency halt the sale of consumer products containing silver nanoparticles

The petition called for the EPA to:

* Determine the potential human health and environmental hazards from nanosilver with nano-specific toxicity data requirements, testing and risk assessments.

* Clarify that nano-silver is a pesticide and thus must undergo the rigorous and extensive testing process involved in registering a pesticide. Moreover, products with nano-silver must carry a pesticide label.

* Take immediate action to prohibit the sale of nano-silver products as illegal pesticide products with unapproved health benefit claims.

The authors of the report say that EPA is not “doing near enough” to address the hazard.

“This report should be a kick in the pants to EPA to start fining companies that use nanosilver without going through the registration process,” Dr. Jennifer Sass, senior scientist and nano specialist for the Natural Resources Defense Council, who is also speaking at the Brussel’s meeting told me in an email.

EPA says it is ready to take action if asked.

“The EPA is prepared to address the nanosilver issue but nobody has applied to the EPA with a product. It hasn’t happened,” said Dale Kemery, an agency spokesman.

Nanoized silver is not the only metal that worries regulators and the public health community. Carbon nanotubes, nano zerovalent iron, cerium oxide and others are on some government hot lists.

The California Department of Toxic Substances Control has ordered all manufacturers who manufacture, import, sell or use nano material with those metals to supply the department with extensive information on their source, use, transport, and disposal.

According to the EPA and FDA, they have no plans  to collect similar information.

The debate, to some extent, centers on semantics. Pesticides kill bugs and other things and their use is controlled by the government.

The Nanotechnology Industries Association and other trade groups insist that nanosilver is antimicrobial – it goes after germs – and is not a pesticide.

May 21, 2009

Government is sending money to care for asbestos victims in Libby. Will W.R. Grace keep picking up medical bills as it promised?

People in Libby, Mont. are through licking their wounds and are working to put the acquittal earlier this month of W.R. Grace and its executives behind them.

But many say they live in fear that the innocent verdict offered up by the jury will give the former owner of the asbestos-contaminated vermiculite mine the chutzpa to end the insurance coverage they’ve promised to provide to the hundreds of miners and townsfolk sickened by the lethal fibers the corporation pulled out of the ground.

Montana Sen. Max Baucus today passed some good news on to the tiny town in the state’s northwest corner. He says he got the Department of Health and Human Services to free up $6 million to provide health care for people with asbestos-related illness.

“It’s really great news, and we can use some of that up here,” said Dr. Brad Black, who runs the Center for Asbestos-Related Diseases clinic in town.

Dr. Brad Black. (c) Photo a. schneider

Dr. Brad Black. (c) Photo a. schneider

“Everyone was scared to death that Grace would stop paying the little it does pay of the medical expenses of the people here,” Black told me today.

With the high cost of medication, oxygen and hospitalization, the $6 million won’t go very far to provide screenings and health care services to the hundreds of people battling asbestos-related illnesses.

However, the senator says that major help may be on the way as he believes he can get a Public Health Emergency declared for Libby.

Battles had been fought throughout the Bush Administration, by OMB and EPA for years over those three little words.

Paul Peronard, Chris Weis and Aubrey Miller – the trio of EPA emergency response and public health specialists who were the first to arrive in Libby a decade ago –  had their careers threatened repeatedly because they saw the need to declare the emergency.

They fought for the designation because it would permit EPA to do the complex cleanup the unique tremolite asbestos demanded, the town needed and would make the government responsible for ensuring the delivery of adequate health care.

The Bush Administration fought the effort because it was trying to force an industry-sponsored asbestos litigation reform act through Congress and wanted no attention brought to the devastation asbestos could impart.

The Democratic lawmaker lambasted the decision to not declare a public health emergency at the time, calling it an “outrage.”

Baucus said a public health emergency would authorize cleanup work in homes and other structures as well as require the federal government to provide screenings and health care for Libby residents with asbestos-related disease.

The public health emergency would be declared by the Environmental Protection Administration.

“I’ve talked with the head of HHS, Kathleen Sebelius and the head of the EPA, Lisa Jackson, and they both know how important it is to help the folks in Libby,” Baucus said

“We all have been working for months together to figure out how to best help folks affected by this tragedy.”

Baucus holds senior positions on oversight committees for both HHS and EPA.

He described his action as a step to bring justice to folks in Libby “who were poisoned at the hands of Grace.

“We expect this Administration to make decisions based on sound science and to right the sins of the last Administration.”

May 14, 2009

Pesticide is too dangerous for use in the U.S., but apparently it’s just fine to use in other countries.

Carbofuran, an extremely dangerous pesticide that will be banned in the U.S., can still be sold and used overseas.

This raises concerns among food safety experts that farm workers and their families in Latin America and Asia can continue being exposed to the neurotoxin, and it may still end up on food exported to this country.

FMC Corp., the manufacturer of the pesticide, told the Charleston (WV) Gazette’s top gun reporter Ken Ward that the ban imposed Monday by the EPA “won’t affect production of the pesticide at the Institute’s chemical plant because most of the product is shipped overseas.”

Food safety activists denounce what they call a double standard for safety.

“The continued export of a pesticide determined too hazardous to be used in the US (shows a) hideous disrespect for millions of people and the environment around the world,” Margaret Reeves, a senior scientist at Pesticide Action Network North America, told me today.

“There is simply no reason to continue its use and many reasons to ban its use altogether.”

photo-jsass

Senior Scientist Jen Sass

It was three years ago, after years of bickering among EPA pesticide experts, public health activists and the chemical manufacturers that the agency finally said publicly that the use of the pesticide must be ended.

EPA said it was beyond dispute that significant dietary, environmental and farm worker risks existed from exposure to carbofuran.

Dr. Jennifer Sass, chief scientist for the Natural Resources Defense Council, said that initial word from EPA was that although uses of the pesticide in the U.S. would be cancelled, it would still be allowed as a contaminant on imported coffee, sugarcane, rice and bananas.

This, Sass said, would have meant that the manufacturer could still sell carbofuran in other countries that grow these foods for U.S. markets, thus putting at much greater risk those foreign workers, their families and their environment.

But apparently the restrictions issued by EPA on Monday also slash the amount of carbofuran residue limits (tolerances) permitted on all food imports.
“EPA’s decision will prevent all food contamination, including imports,” Sass said on her well-read blog.

However, the company is not going to sit quietly and allow this to happen.

FMC Corporation strongly disagrees with the EPA’s announcement to revoke all U.S. food tolerances for carbofuran, and the company plans to file objections to the agency’s actions and seek an administrative hearing, said Dr. Michael Morelli, Director of Global Regulatory Affairs for the company, on FMC’s website.

“President Obama has committed EPA to regulate on the basis of sound science, and FMC is confident that a fair hearing based on sound scientific principles will prove carbofuran’s safety to the satisfaction of all,” Morelli said.

If you care about the technical language, here is a link to EPA’s cancellation notice.

April 29, 2009

An organization for government environmental workers say a report from EPA’s IG criticizes the agency’s cleanup of asbestos in Libby.

Filed under: Asbestos,EPA,W.R. Grace — Andrew Schneider @ 11:03

It’s a bit bizarre to me to be sitting in the back row of a Montana courtroom listening to another day of testimony in the criminal trial of W.R. Grace, while at the same time writing about reported cleanup problems of the lethal mess the same company made in the town of Libby.

Just to keep people (including me) from becoming confused, let me stress that this has nothing to do with the charges against Grace.

Nevertheless, here’s what Public Employees for Environmental Responsibility had to say today about the investigation in 2006 by EPA’s inspector general’s office.

The IG said epa-logoit found no need for criminal action after its review of the cleanup, but PEER, a union-like organization that sued to get a report on investigation made public, said there were “critical deficiencies” in the agency’s actions.

The suit prompted the release yesterday of the of a 2006 investigation by IG Special Agent Cory Rumple.

Rumple was looking into allegations of public health concerns about the methods employed by EPA to remove asbestos-contaminated vermiculite from homes within Libby.

Accord to PEER, problems found by Rumple included:

·      A thorough “disconnect between scientists and the agency” over how to conduct the clean-up; distribution of “exceptionally deceiving” public health information to Libby residents and fighting within the EPA that led to “dysfunctional decisions and resignations of key specialists.

Because of the ongoing Grace trial, none of the EPA people that I called for comment who were involved in the cleanup were permitted to talk, though some were eager.

PEER Executive Jeff Ruch says the IG report “raises more questions than it answers, including why it was hidden from the public.”

Rumple’s clear conclusion in his report that the Libby problems did not constitute criminal violations, the IG nevertheless launched a 21-month-long criminal investigation which resulted in the Justice Department declining to bring any charges.

“As a result of the Inspector General pursuing a fruitless criminal inquiry, today we still do not have a clear idea of whether the Libby clean-up is protective of the public,” Ruch added.

EPA releases memo on IG investigation of alleged wrongdoing by it people and contractors in Libby, Mont. No criminal action found.

Filed under: Asbestos,EPA,Government & corporate wrong-doing — Andrew Schneider @ 07:43

After two years of refusing repeated requests for its release, the Environmental Protection Agency freed up some information on a preliminary report on alleged criminal actions involving government contractors cleaning up asbestos in Libby, Mont.

Last week, Public Employees for Environmental Responsibility filed suit in federal court requesting the release of the report under the Freedom of Information Act and President Obama’s promise of less secrecy.

What was released yesterday was a memo from Cory Rumple, a special agent in EPA’s Office of  Inspector General to Bill Roderick, the agency’s acting IG.
In 2006, Rumple did a preliminary investigation in Libby because of concerns raised by some townsfolk that alleged that EPA failed to fully address scientific standards for cleanup and of possible contractor misconduct.

The agent’s work led a 21-month-long criminal investigation of the situation that concluded with a refusal to pursue criminal case by the Public Integrity Section, Criminal Division of the U.S. Department of Justice.

Here is a link to the IG memo.

March 16, 2009

What kind of justice does Libby want from the criminal trial of W.R. Grace?

Filed under: Asbestos,EPA,Government & corporate wrong-doing,W.R. Grace,Worker Safety — Andrew Schneider @ 21:04

As a reporter for the Seattle Post-Intelligencer, I broke the story of the asbestos poisoning of Libby, Mont ., 10 years ago.  Tonight, the paper prints its final edition, which means I won’t be able to write about the outcome of the W.R. Grace criminal trial for the newspaper that first revealed what happened to Libby and its people.

I’m going to try to keep up with the trial on this blog. But I thought I’d share with you the final post I wrote for the PI: What the people of northwestern Montana that I’ve spent a decade covering hope they will see coming out of the federal courtroom in Missoula.

* * * * * * * *

Of course I’m sad that Les Skramstad has passed on.

No one should have to suffer the slow suffocation caused by years of sucking in needle-sharp fibers of asbestos that fester until their lungs are too rigid to gulp the air needed to breathe, or they drown in their own fluids.

Les told me that he’d give up a year of his fleeting life just to sit in the front row of hard, wooden benches in Judge Donald Molloy’s courtroom and watch justice delivered to W.R. Grace and five of its former VPs’ and top managers.

Les and EPA criminal investigators

Les and EPA criminal investigators

He just didn’t have that year to trade. And I don’t think the lanky cowboy would be really happy sitting there anyhow. He might have gotten some satisfaction glaring at men who, according to thousands of Grace documents, knew that the miners on Zonolite Mountain – Grace ‘s miners, the men who dragged tainted vermiculite out of the earth – were being exposed to high levels of asbestos and would most likely die because of it.

Les wanted to watch them swing. He anguished over the unbearable knowledge that on his work clothes, he brought that poison from the mine into his home and into the lungs of his wife, Norita, and three of his children. He wanted the death penalty for them, and he offered to build the gallows.

He was standing by the courthouse steps in Missoula on Feb. 7, 2005, when U.S. Attorney Bill Mercer read the indictment. Les sat on a chilled concrete bench beside two EPA investigators who patiently explained what the criminal charges were and why they were filed under the Clean Air Act.

But Les heard what he wanted to hear, that Grace and its gang were going to be held accountable for all the atrocities committed during the 30 years they owned the mine, including allowing thousands of pounds of deadly asbestos fibers to fall on the town.

In Les’ mind and in the minds of others I’ve talked to in the past month, Grace and its executives should be standing trial for homicide.

That doesn’t matter in Molloy’s courtroom. Not only does the Clean Air Act not have provisions for homicide charges, but it also has only been around since 1999. Thus, those accused are only being held accountable for actions after that date.

If convicted of all charges, no one will hang. But they can face years in a federal prison.

Norita did sit in court and watch the beginning, as did Les’ sidekick in the long battle against Grace, Gayla Benefield.

Gayla and Norita outside federal courthouse in Missoula

Gayla and Norita outside federal courthouse in Missoula

Gayla knew there would be no death sentences nor life terms, but she said any time behind bars would be some vindication. Some justice demanded.
She said that as she sat in the courtroom, images gnawed at her soul.  She thought of those back in Libby.

“They had already watched friends, family, coworkers and neighbors struggle for a simple breath. They knew that they would die, not a natural death brought on by old age, but by the slow strangulation that follows exposure to something that they were told nothing about,” she recalled.

As she watched the faces of the five Grace executives, she said she wondered if  they worried about the uncertainly of their futures.

“Even six months confined in a cell without the luxury of normal life must seem frightening to them,” she thought. “They may miss the birth of a beloved grandchild, the graduation of a family member from the university, the funeral of a family member. Some may not survive.

“For once,” Gayla said, “the finest lawyers and all of the money in the world cannot protect them from reality.”

Norita doesn’t talk much. Caught between Les and Gayla, there wasn’t much of an opportunity.

But with some gentle prodding,  she allowed that Les would probably accept the jury’s decision.

“What he needed was justice. That just might  happen,” Norita said.

Dropping her voice to a whisper, she added, “What he really wanted was for Grace to apologize, and I don’t believe any of us will live long enough to see that.”

February 27, 2009

Sparks fly as WR Grace trial ends first week

Filed under: Asbestos,EPA,Government & corporate wrong-doing,W.R. Grace — Andrew Schneider @ 13:51

The first week of the nation’s biggest environmental crime case is over. Jurors headed home to a well-deserved drink or a fistful of headache pills. Some lawyers flew back east while most are, and will be, cloistered way until Monday in their hotel war rooms trying to sort out the ramifications of Judge Donald Molloy’s numerous head-spinning decisions and orders. And there were many.

One of the new wrinkles has to be the action this morning by the U.S. 9th Court of Appeals which tossed out Molloy’s much debated interpretation of the Crime Victims’ Rights Act. Before the trial started, his honor ruled that 34 Libby residents who were scheduled to testify for the government couldn’t enter the courtroom because it hadn’t been shown that they were victims of criminal actions by Grace.

Depending on how Molloy react to the higher court decision, it could make next week a little spicier.

But getting back to this week, based on probably meaningless courtroom chatter, the consensus was that the prosecution was most seriously damaged by the judge’s actions. If the severe restrictions on what the prosecution’s top witness – Paul Peronard – is permitted to testify about were likened to a restricted artery, the government’s case may have suffered a mild heart attack.

But prosecutors Kris McLean and Kevin Cassidy did a lot of skillful tap dancing and on-the-fly maneuvering in skirting Molloy’s landmines and trying to patch potential gashes in their plan of battle and keep Peronard’s testimony moving.

Paul Peronard one one of the many asbestos-contaminated sites in Libby

Paul Peronard one one of the many asbestos-contaminated sites in Libby

The prosecution led the EPA on-scene coordinator though seemingly endless questions on what EPA had asked Grace and what the chemical giant had replied. There were displays of aerial photographs of locations in Libby tainted with the asbestos-contaminated vermiculite or mine waste.

Every play “Whack a Mole” at the fair? Well, defense lawyer were doing a very accurate, non-stop imitation of the game throughout Peronard’s testimony. The government could barely get a question asked before one, two or three lawyers popped up with objections.

Grace’s top lawyer David Bernick got his turn to cross-examine Peronard late in the day and it wasn’t pretty. But none of the jurors dozed off.

Bernick hammered away at Peronard, his machinegun-paced questioning attempting to rebut or at least dilute the effectiveness of every point the prosecution may have scored with the jury in establishing the obstruction of justice charge against Grace.

The center of the argument was a questionnaire called a “104-E” that I’m sure the jurors will come to despise. Companies involved in investigations into alleged illegal handling of hazardous material are required to complete the multi-page form.

Bernick repeated back almost every statement Peronard made in answer to Cassidy’s earlier questions.

In one section dealing with where Grace stored waste from the mine, Peronard responded that Bernick’s version of what he had said with “You’ve got to be kidding me. Those are your words and I think they’re nonsense.”

When the normally unflappable on-scene coordinator bit his lip and tried to show Bernick why he was mistaken, Grace’s lawyer would snarl “Unresponsive,” followed instantly with another question.

“You keep saying I knew about it and I didn’t,” Peronard jabbed at Bernick at one point.

Molloy admonished them to play nicely but the loud gamesmanship continued until the courtroom clock mercifully struck 5 o’clock and week one was declared over.

It’s going to be a very long four-months.

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February 26, 2009

Grace and government both hide dangers in Libby

It’s bizarre and a bit prickly to sit in a federal courtroom and watch a story that you broke a decade ago, then chased with about 240 follow-ups and a book, being played out in front of you.

It becomes surreal when the judge talks about the book from the bench and defense lawyers introduce excerpts into evidence and then do dramatic readings to the star witness for the prosecution.

That’s pretty much what happened Wednesday at the criminal trial of W.R. Grace for its alleged poisoning of Libby, Mont. The prosecution’s most knowledgeable witness, Paul Peronard, EPA’s on-scene coordinator for Libby, sat in the witness chair and listened to comments he made years ago on which I had reported.

Peronard was the prime target of Grace’s defense team, who wanted him to be banned from testifying — or at least discredited. Neither happened, but Grace lawyers were able to convince Judge Donald Molloy that Peronard could only testify about his actions, and then only within a narrow time span.

The 23-year veteran of the EPA held his own and kept his cool. His straight-talking answers drew occasional smiles from some jurors and scowls from members of the defense team. But even he was puzzled when defense lawyers started reading back comments he made years earlier.

The first was a Seattle P-I story from 2005 which discussed Peronard, and Drs. Aubrey Miller and Chris Weis having a dinner at the MK Steakhouse on an elk-clogged road 10 miles out of Libby.

The trio had just left a late night community meeting where residents were seething that the international chemical company that owned the polluting mine had not yet been brought up on criminal charges.

“Grace has been telling the same lie for over 40 years,” Peronard said. “They still maintain that insulation and other products made from Libby vermiculite has little or no asbestos in it. The courts have ruled that people have died because Grace concealed the danger from their workers, from the town, and from their customers.” Peronard understood the town’s frustration, the lawyer read.

“What Grace did was criminal,” he said. “There’s got to be more that the government could do.”

A murmur went through the spectators.

The lawyer questioned whether he said it and asked if it was accurate.

“It’s pretty much what I said,” Peronard said.

The defense lawyer then read a section from “An Air That Kills,” a book on Grace’s poisoning of Libby, where Peronard and his team are sorting through documents from Grace and the government.

“When you put all these together, you’ve got the answers. You’ve got proof, vivid and unquestionable, that what was going on in Libby was a proven hazard and people we’re being killed. EPA, NIOSH, OSHA � the whole damn government � knew what was happening to the people of Libby and not a damn thing was done about any of it.”

The lawyer jumped ahead a few paragraphs.

“This is criminal,” Peronard said. “They botched the whole investigation, which would have saved twenty years’ worth of exposure and lots of lives.

“We’ve been working our asses off trying to get an understanding of what happened here, why these people were killed, and nobody mentions that we knew these guys were swallowing asbestos and did nothing about it. The courts have ruled that people have died because Grace concealed the danger from their workers, from the town and from their customers.”

This time, the lawyer asked if Peronard still believe that the actions of both Grace and the government, including his own agency, were criminal.

“Absolutely,” Peronard said. “This is why we’re here today.”

The lawyer asked if his candor had gotten him into trouble. “At times,” he answered modestly.

What he didn’t volunteer was that much of the trouble he and his team repeatedly found themselves in came from Grace, the asbestos industry and its defenders in his own agency, Capitol Hill and the White House

There was never any doubt that Grace had painted fluorescent bull’s eyes on the backs of the emergency coordinator and Miller and Weis.

Letters, e-mails and memos from Grace and other players in the asbestos world, denouncing the actions, findings and conclusions of the threesome fill files in every federal agency that deals with public health – EPA, MSHA, NIOSH, USGS – and the archives of the Bush White House’s Office of Management and Budget.

It’s difficult being a reporter who has been this close to an issue and people that he’s come to know over years. I’ve been to too many funerals in Libby. I always have to watch what I say and what I write even on this blog and that’s as it should be. But it’s getting rough covering this trial.

Editors might not allow me to praise Peronard in a newspaper story for having have the guts to stand by his convictions that Grace and the government were wrong and their inaction may have increased the toll of death and misery. He could have easily said that I had misquoted him. He didn’t.

But this a blog and I’m allowed to express my opinions, up to a point.

So label this my opinion: Grace may end up not being held accountable for the tragedy at Libby when this trial is over, but it will not be because Peronard and his gang weren’t doing their jobs.

For updates, check Twitter at asinvestigates.

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February 25, 2009

W.R. Grace succeeds in stifling key government witness

UPDATE: at bottom

It took just minutes for W.R. Grace’s top lawyer to begin denouncing the scientific qualifications of the government’s chief witness and the man who led the government’s efforts to protect the people of Libby from the asbestos that poisoned their small Montana town.

The assault on Paul Peronard by David Bernick was not unexpected.

Paul Peronard and his two medical and scientific sidekicks – Dr. Aubrey Miller and Toxicologist Chris Weis – have long been targets of Grace from almost the moment they arrived in Libby in November 1999.

That trip was ordered by then-Regional EPA Administrator Bill Yellowtail. Their mission, Peronard explained to the jury, was to refute stories in the P-I that reported people in the remote, northwest Montana town were sick and dying because of asbestos contamination from Grace’s nearby vermiculite mine.

Bernick gushed politeness in his questioning of Peronard but wasn’t at all subtle in showing that the 23-year EPA veteran wasn’t a toxicologist, wasn’t an epidemiologist and didn’t personally peer through a microscope and analyzes the type and amount of asbestos in thousands of samples of Libby soil and air.

In reality, it wasn’t much of a effort, because Peronard had never claimed that expertise. He made it clear that he was Libby’s on-scene coordinator and he managed the professionals that had those skills and determined what skills were needed to assess the risk of the asbestos hazard in Libby.

Bernick’s mission was to discredit Peronard, or at least greatly limit what Judge Donald Molloy would permit the emergency-response expert to testify about. If he couldn’t get Peronard tossed out, the least Bernick wanted was to forbid him from testifying as an expert in science issues.

He’s crucial to the prosecution’s case because he was up to his neck in Grace’s actions from the beginning. But of perhaps greater importance, he is believable.

He showed up in Libby, head shaven, diamond studs in his ears and a gallery of tattoos showing. Over the years, he defused crowds of angry, government-hating, militia-loving townsfolk who believe that Peronard never lied to them. Probably as a concession to the U.S. attorney, the earrings are missing and the tats are mostly covered by long-sleeves. The jury should love him and Grace’s lawyers fear it.

Meanwhile, Molloy ordered the jury out and Bernick continued his quest to silence Peronard. He repeatedly asked if he could do X,Y, or Z and Peronard never faltered in explaining that he didn’t have to perform the science needed for Libby’s risk assessment, because he was surrounded by some of the best experts around.

Grace’s lawyer questioned that fairness, sanity, legality (pick one) of using sample results, and other information gathered to justify the cleanup and civil actions against his company in the present criminal case.

Prosecutor Kris McLean and Peronard both said that wasn’t the case. It never happened.

“Give me a break,” Bernick muttered.

Lawyers for the five Grace executives on trial joined the fray. Not only did they want Peronard stifled, they wanted to reopen a debate over precisely what type of asbestos fiber was sickening Libby residents. It was as if the years of legal wrangling, appellate rulings and agreements among Grace, the government and Molloy never happened.

Is the lethal fiber tremolite, or winchite or richterite, the lawyers asked.

Libby residents in the audience squirmed and shook their heads. They’ve heard this debated far too many times. “It’s asbestos and it kills, and Grace knew it,” said Gayla Benefield, an early activist in the fight against Grace.

After almost three hours, the judge volunteered that Peronard had testified before him several times in the past said he that he was clearly the “finest on-scene coordinator in the nation, maybe beyond.”

Nice comment, but a harbinger that Molloy’s next comments weren’t going to be as sweet. They weren’t.

Molloy countered that the defense should be pleased if he ruled that Peronard could only testify on what he did, not why he did it, especially, avoiding that mentions that actions were taken to save lives.

It got to point of indicating which very few paragraphs in the thousands of documents and reports on the assessment and cleanup in Libby could be even discussed by the government.

Grace won. Peronard would not be allowed to testify on any scientific information.

Bernick promised that if Peronad or the prosecution strayed, he’d “be standing up and objecting left, right and center.”

Molloy just glared for a moment, slammed the gavel down and adjourned for lunch.

Peronard, painstakingly spend the remainder of the afternoon recreating a very detailed chronology of the response and cleanup in Libby.

After the jury was excused Molloy allowed the lawyers on both sides to complain about whatever they were unhappy about. (I’ll pass on several snarky comments that race to mind.)

The prosecution gently questioned apparent restrictions on discuss of the actual cleanup of Libby,.

Kevin Cassidy argued that the EPA cleanup and investigation “is this case.”

The defense argued that the government was unfair in allowing Peronard to mention asbestos in dust and soil since this is a Clean Air Act Case.

Molloy suggested that Friday morning would be a fine time to chat about these concerns.

The defense is expected to get its shot at Peronard tomorrow.

Watch for updates on Twitter at “asinvestigates.”

February 24, 2009

Grace lawyer objects to about every question asked

Filed under: Asbestos,EPA,Government & corporate wrong-doing — Andrew Schneider @ 17:50

If W.R. Grace lawyer Barbara Harding got a buck each time she leaped out of her chair to object to a question the prosecution had asked their witness, she probably would have made more today than the $40 each juror got paid to serve at the largest environmental crime trial in history.

Depending on which side of the Missoula courtroom you sat, Harding was either tenacious or obnoxious. But regardless of what you call her, she was doing what any good defense lawyer would do and that’s keeping the opposition from straying from what the judge says the trial is all about.

In this case, that path is very narrow.

To the pain of many Libby residents in the spectators seats, the government cannot address the decades of dangerous working practices at Grace’s mine on Zonolite Mountain. Nor can prosecutors discuss that the world-wide chemical company reportedly allowed thousands of pounds of asbestos fibers from dust being spewed from a vermiculite processing mill six miles away to inundate the tiny town of Libby.

Rather, the government must focus only on harm that occurred after the federal Clean Air Act and its “knowing-endangerment” provision was enacted in 1990.

Harding repeatedly interrupted the questioning by federal prosecutors Kris McLean and Kevin Cassidy and griped that the question wasn’t relevant.

Judge Donald Molloy played referee in his long, black robe and told McLean and Cassidy to “be precise about the dates these events happened.” But more than half the time, Molloy overruled Grace’s second chair lawyer and allowed the question to be answered

The jury got its first peak at some Libby residents reportedly sickened from exposure to asbestos at the mine, in the air or soil or from the Zonolite insulation leaking into the house.

Kelly O’Brien, who worked at a mental health center in Libby, told jurors that the vermiculite was all over.
“When the washer or drier were on the spin cycle, it would shake the insulation from the ceiling and there would be piles of dust on the machine,” he explained.

Seven of the witnesses said they had asbestos-related diseases, four had lost spouses or siblings.

Vernon Riley told of his wife, Darlene, dying of mesothelioma.
“I had her just 2 ½ years after she learned she had that cancer,” he said, his soft voice cracking.

Defense lawyer Harding asked every male whether they’d ever changed brakes on their own car or truck, a common chore for men and boys in the West. She asked three witnesses if they knew that brakes contained asbestos.

This is an amazing admission for someone representing a company that sold asbestos, because in courtrooms though out the country, the asbestos industry had denied for years that asbestos in brakes is harmful.

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