andrew schneider investigates

June 8, 2009

Too many Chinese food producers add poisons to food to increase profits. Will new food safety law end the adulteration?

Many food exports from China may be dangerous, but some of the tricks used to fool Chinese shoppers are even more treacherous.

Everyone knows about the about the tens of thousands of Chinese infants struck down but kidney-destroying melamine in their milk and the 60,000 dogs and cats worldwide who died after eating it in the pet food.  Here are some other examples to consider:

Stinky tofu (yes, a real name) is a very popular street food throughout many Asian countries. Its aroma, which can bring the weak to their knees, comes from lengthy and thus costly fermentation.  Chinese food authorities found that some tofu producers created the reeking odor with rancid water and sewage. The desirable dark color came from ten illegal chemical dyes.

Chicken and duck farmers added Sudan Red Dye IV to the feed used in their poultry operations. The dye, a cancer-causing agent banned in food in many countries, makes the yolks a vivid bright reddish orange, and is sought after as a special and costly treat.

Some of the Chinese verdors at the IFT expo.  (c) a. schneider

Some of the Chinese verdors at the IFT expo. (c) a. schneider

Another egg fraud centers on another foul-smelling but very expensive and coveted traditional delicacy called a 1000-year-old egg. They’re really not preserved for ten centuries, but more like 100 to 150 days, according to a cook who gave me a bite of one in Vancouver. She said they normally are buried in a mixture of soil, lime, ashes, salt and green tea. Eventually, the egg white turns a gooey brown in color, and the yolk becomes dark grayish-green.  But people love it.

Money hungry phony egg producers eliminate the waiting time and just add lead oxide to alter the eggs. However, the chemical can destroy blood, the central nervous system, kidneys and other organs as well as causing birth defects and convulsions.

Other inventive food suppliers, instead of using a higher quality flour, have been caught adding alum to strengthen noodles and borax to preserve rice cakes, while fish farmers use the cancer and birth defect-causing antibiotic and antifungal agent Malachite green to control disease in the fish they sell. Of course, there are the beekeepers who taint their honey by using illegal antibiotics in their hives.

“Everyone of these food adulterations can be attributed to economic motivation,” said Dr. Yao-wen Huang, a professor of food science at the University of Georgia.  Most of the appealing examples mentioned above are his, and he and his colleague Hong Zhuang, a research food technologist for the USDA, were speaking at the International Institute of Food Technologists on food safety challenges in China.

The existing food safety system is not effective for a variety of reasons, including that 17 different bureaucracies work under the food and drug safety umbrella, and they each jealously guard their power,  Huang explained but added, that 8o percent of China’s food producers are small operations employing fewer than 10 workers and most pay little attention to the few safety requirement that exist.

Not only is enforcement convoluted, but also the blurred lines of responsibility and weak investigatory skills are further hampered by corruption, with some inspectors and their bosses take bribes in exchange for favors, the professor told me.

Prof. Yao-Wen Huang

Prof. Yao-Wen Huang

On June 1, China imposed a new food safety law.

Qin Zhenkui, president of the Chinese Academy of Inspection and Quarantine, believes the comprehensive requirements of the new law will make a difference.

Zhuang presented remarks from Zhenkui, which detailed the increased controls on food producers. These include inspection and licensing of all food manufacturers as well as rigorous requirements and previous state approval for all additives.

Food inspectors are not permitted to grant any exceptions to the rules, Zhuang explained.

This could eliminate, or at least reduce, the bribes for not seeing wrongdoing, but is that enough?

“The law should be an improvement,” Huang told me. “Everyone in the supply chain should be forced to get involved in ensuring the safety of the food — from the farmers, to the processors, the transporters, exporters and the importers themselves.

“’I didn’t know’ can no longer be an acceptable answer from anyone when it comes to food safety.”

This morning I stopped by nine exhibits of Chinese companies exporting food and asked representatives what they thought of their country’s two week-old food safety law.

Five sales agents told me that they’d never heard of it. The remaining four said the were forbidden to speak with the press, but one added, “China only sells the highest quality food. The problems in the press are fabricated.”

He wouldn’t give me his name.

May 26, 2009

Crime lab tools can identify mislabeled and smuggled seafood faster and easier and diners might get the fish they pay for.

Filed under: Food labeling,Food Safety,Government & corporate wrong-doing,Seafood — Andrew Schneider @ 05:37

Food scientists are taking a page out of the crime fighting handbook to figure out whether consumers and restaurants are actually getting the seafood they are paying for.

A study published in the Journal of Food Science and Technology demonstrates that a DNA testing can quickly and inexpensively  tell you whether the fish you’re paying for is actually what you thought you were buying.

Food Scientist Rosalee Rasmussen

Food Scientist Rosalee Rasmussen Photo by Lynn Ketchum

“Fish and seafood substitution has become an important concern in domestic and international marketplaces, in part due to increased international trade, per capita seafood consumption, and production of processed foods,” says Rosalee Rasmussen of Oregon State University seafood laboratories in Astoria.

Investigators with the Food and Drug Administration say “economic deception or fraud in the sale of seafood occurs when a less expensive species is substituted for a more expensive species.” And, they added, “this misbranding is a federal crime.”

In the past, federal investigators have brought charges against importers and suppliers who knowingly misidentified species of fish to avoid paying steep import tariffs imposed to protect both U.S. fishers and endangered fish.

In at least two of the cases, the motivation to test the seafood came from obvious fraud on the shipping papers and, in the other, an informant.

Less expensive rockfish is often substituted for more expensive red snapper; yellowtail tuna instead of Mahi; sea bass for halibut; farm-raised Atlantic salmon for the finer tasting and richer wild Pacific, and even roe from paddlefish labeled as caviar from sturgeon.

In the article, Rasmussen and Prof. Michael Morrissey with the university’s Food Innovation Center in Portland, examined the impact of identifying bogus fish using the DNA techniques more common to CSI crime labs.

Both Rasmussen and federal food investigators say the amount of mislabeling actually is difficult to pin down because there is very little monitoring of the commercial fish supplies

“For example,” Rasmussen told me, “over 80 percent of the U.S. seafood supply is imported, but the FDA only examines about 2 percent of imported seafood.”

Last week, an FDA supervisor said she agreed with the Oregon scientists.

“We have so very few inspectors watching imported food that seafood is really low on the list,” she said. But “things may get better,” she said, because in March President Obama said he would “substantially increase the number of (FDA) food inspectors and modernize food safety labs.”

William Marler, one of the nation’s top food safety litigators, described the mislabeling as more of a fraud issue than a safety concern because fish and other seafood products, imported or not, make up a very small part of food that poisons consumers.

“From a consumer’s perspective of knowing if what they’re paying for is actually the seafood they thought they were buying, spot DNA testing makes much sense,” said the Seattle-based lawyer.

The food journal article is a compilation of substitution studies conducted by many scientists who have examined whitefish, such as hake, Pollock, and cod; tunas such as skipjack, albacore, yellowfin, and bluefin; and sturgeons, sharks and even commercial whale meat, Rasmussen explained.

I spoke to buyers and fishmongers at two national food chains who said they rarely get taken because they work closely with their suppliers and usually deal with the whole fish, which is easier to identify before it’s packaged as filets or steaks.  Much more likely targets, they said, are restaurants or institutional buyers who purchase much of their imported fish cut and packaged into serving sizes.

Rasmussen  cautioned that diners and consumers will have a much more difficult time telling if mislabeling has occurred if their dinner  has been further processed, such as breaded and fried.

Here is a link to the journal article.

For a more extensive listing of seafood most often wrongly labeled, here is a link to an FDA website.

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 16, 2009

Kill step and an adequate lethality. We can’t be talking about food.

salmonella   Photo CDC

Why would words like “kill step” and “adequate lethality” be in the lexicon of the USDA, the Food and Drug Administration and major manufacturers of heat-to-eat food?

After putting aside all the complex government and scientific explanations, these war-like sounding phrases are steps that food producers hope and expect consumers will take to keep from being poisoned by salmonella.

I began chasing this issue a bit last year and when I spoke to food scientists at USDA’s Food Safety Inspection Service. They told me that adequate lethality is a kill step, the point where the precise combination of temperature and cooking time will kill biological hazards in food.

They said that far too many consumers wrongly believe that when they pull a frozen meal from the freezer in the grocery it has already been treated to eliminate contamination to salmonella and other bacteria that can cause painful illness and sometimes death.

What most consumers don’t understand is that food packagers, especially those who manufacture frozen food, expect the consumer to take the kill step. The problem is that most shoppers have no clue that this safety burden has been dumped in their pot.

The Association of Food, Beverage and Consumer Products Companies issued guidelines last year for their food production members to pay special attention to instructions given to consumers when it came to foods “not-ready-to-eat.”

They documented that many consumers believe that food is heated for palatability or taste, but is not required for food safety. Because of this belief, people can and do become ill.

The association urged its members to develop instructions for preparing their frozen products that make it clear that the “food must be cooked at a time/temperature combination sufficient to reduce the number of pathogens that might be present . . . to a safe level.”

The key here is not heating, but cooking to the point required to “kill pathogenic microorganisms that may be present in many frozen entrees,” the guidelines cautioned.

A decade or more ago many food processors began labeling their products with phrases such as “Oven Ready,” “Cook and Serve,” and “Ready to Cook,” assuming that consumers would understand that cooking was necessary for safety, not just taste.

The FSIS safety specialists told me that among their greatest were frozen food that is microwaved since uneven heating of foods in microwave ovens has been implicated as a key factor in improperly cooked food products. This non-uniform heating leads to cold spots in the product, which may allow the survival of pathogens such as salmonella.

The Center for Science in the Public Interest, a national food safety advocacy group, explained that its researchers found that the most dangerous products to be cooked in a microwave are frozen uncooked, breaded chicken and turkey products, some breaded fish and frozen meat and poultry pot pies.

If you want more information on this battle of the bacteria, I urge you to read a fine, comprehensive piece of journalism by New York Times’ writer Michael Moss in Friday’s edition. It may shock you into cooking your foods long enough to make them safe to eat.

Here is a link to it.

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.

May 13, 2009

Law enforcement and food inspectors say they’re closely watching the success of new tests that may keep bogus honey off store shelves.

Illegal honey laundering may become a lot more difficult because French scientists from the Université de Lyon have developed and tested a simple method that can distinguish pure, natural honeys from adulterated or impure versions that they say are increasingly showing up on store shelves.

The study by Bernard Herbreteau and his colleagues in Lyon, France was released this week in the Journal of Agricultural and Food Chemistry.

(c) Photo by a. schneider

(c) Photo by a. schneider

“The high price, limited supply and complexity of honey combine to encourage falsification,” the scientists wrote. “Indeed, despite the technological advent of modern analytical instruments, there is still a problem with the adulteration of high-carbohydrate foods, such as honey, with inexpensive syrups.”

In the U.S., there are four major civilian labs and one government facility that claim the ability to identify adulterated honey.

Yet, when it comes to proving where the honey actually came from, criminal investigators, some U.S. regulators and a only a few of the largest domestic honey sellers send samples to a German lab. The lab says it’s the only place that can identify the precise country of origin of a honey.

Mostly, this analysis is needed to identify falsely labeled Chinese honey, which is smuggled into the U.S. after first being sent to other countries. The Chinese honey often contains illegal antibiotics, according to government authorities.

Criminal investigators from the FDA and Customs and Border Protection (that I interviewed last year) told me they were waiting for verification of the French test.

They hoped it would be faster, less expensive and more consistent and reliable than the laboratory analysis now available in the U.S.

Herbreteau and colleagues say their highly sensitive test uses a special type of chromatography to separate and identify complex sugars on their characteristic chemical fingerprints.

The most common syrups used to adulterate honey are corn syrups and high fructose corn syrup.

“Honey adulteration has evolved from the basic addition of sugar and water to specially produced syrups from which the chemical composition approximately reproduces the sugar composition and ratios of natural honey,” scientists wrote.

Here is a link if you want to see the actual study,

Links to investigative series on honey laundering by the Seattle Post-Intelligencer can be found on this website on the page called “previous investigations.”

May 11, 2009

Honey laundering thrives despite fed crackdown on two operations smuggling tainted Chinese honey into the U.S. What’s on grocery shelves?

Federal invesHoney Chinatigators from various agencies in Seattle and Chicago  chased illegally labeled Chinese honey from the slums of the Philippines through dilapidated Thai warehouses and into ports up and down the west coast of the U.S.

The paper trail showed that some of the illegal honey was bought by a huge Midwest food distributor, which supplied major grocery chains, investigators said.

Last week, U.S. Immigration and Customs Enforcement agents arrested Chung Po Liu at his home in Bellevue, Wash., and Boa Zhong Zhang and Yong Xiang Yan at LAX as they arrived from China. All were charged with conspiracy for attempting to smuggle millions of dollars worth of honey – possibly contaminated with illegal antibiotics — into the United States.

The names of all three men and their companies came up in my five-month investigation into honey laundering, which was published by the Seattle PI in December.

Three of the many things I learned during that investigation were:
    This could never happen unless honey packers and sellers in the U.S. were involved.
    There is an enormous amount of contraband honey being smuggled into this country.
    Major, legitimate U.S. honey dealers are doing little or nothing to alert the Food and Drug Administration when they encounter illegal honey.

The 68-year-old Liu heads at least two Seattle-based companies, Rainier Cascade and Evergreen Produce.  Both companies import and sell honey to a long list of packers in the U.S. Liu works with Zhang, a 58-year-old Chinese national who is employed by Changge Jixiang Bee products Ltd., in Changge City, Henan Province.

Yan, according to investigators, is the president of the same Chinese honey manufacturing company which has 528 employees and has been in the honey business since 1985.
Yan was arrested for supplying tainted Chinese honey to Alfred L. Wolff, a major food distribution company in Chicago. Wolff supplies honey to packagers who sell it under a score of different brands across the U.S., investigators say.

A Customs and Border Patrol agent in a Tacoma, Wash. warehouse draws samples of Chinese honey that is being shipped to Chicago.  (c) Photot by a. schneider

A Customs and Border Patrol agent in a Tacoma, Wash. warehouse draws samples of Chinese honey that is being shipped to Chicago. (c) Photo by a. schneider

The criminal complaint, filed in Chicago, said the charges against Yan stem from an ongoing investigation (entering its third year) of the honey importing practices of Wolff, which is owned by Wolff & Olsen, headquartered in Hamburg, Germany.
An FDA investigator familiar with the Chicago company told me that invoices he’d seen from two manufacturers who bought from Wolff showed that most of the honey was being sold to major grocery chains, where it was labeled as produced in the United States or Canada.
He said he didn’t know whether the chains that bought the bogus honey were notified of its actual country of origin. He added that he doubted it.
It is almost impossible for those who import and sell honey not to know that it’s Chinese. The price of honey from China is usually only about a third of the cost of honey from Canada, South America or other credible suppliers.

For example, Ron Phipps, of CPNA International, Ltd., publishes a frequent international market report on honey. In a recent issue, he explained that in January, 1.2 million pounds of honey entered this country at 37-cents a pound. At the same time, Canadian honey was crossing the border at about $1.55 a pound.

Leigh Winchell, special agent in charge of the Seattle office of ICE, said, “Those who misrepresent the origin of goods imported into the United States are motivated by greed and unfairly seek a financial advantage over those who play by the rules.’’

The issue goes beyond just the millions in import duties that were being stolen from U.S. coffers.  There are potential health risks involved because millions of China’s hives were destroyed by a virulent disease that swept through the country’s hives at tsunami speed. Beekeepers grabbed the strongest and cheapest antibiotics they could find – two from India and one from China – to fight back.

The most prevalent antibiotic was chloramphenicol. The drug is used to treat serious infections in humans, but is not approved by the FDA for use in food producing animals, including bees.

Honey containing chloramphenicol is deemed unsafe and adulterated within the meaning of the federal food and drug laws, Andrew Boutros, the U.S. Attorney in Chicago. said.

The presence of the antibiotic, even small amounts, is illegal.

During the PI investigation, I followed paper trails of illegally laundered shipments from China to countries throughout Asia and the South Pacific, where it was re-labeled to make it appear it was a product of those other countries. Then it was shipped on to the U.S.

Once those stories ran, people sent the PI evidence showing that Chinese honey was also being transshipped from Europe, South America and at least one African country.

The arrests and the investigation leading up to them demonstrated creative police work by ICE, Customs and Border Protection agents, and the offices of two U.S. Attorneys.  It was a solid, on the ground, door-knocking investigation that involved chasing intricate, multi-lingual paper trails.  (You just gotta love those search warrants.)

If found guilty of the conspiracy charges, the accused could face a maximum penalty of five years in prison and a $250,000 fine.

May 8, 2009

Jury acquits W.R. Grace of all criminal charges. Many wonder how it happened.

Filed under: Asbestos,Government & corporate wrong-doing,W.R. Grace — Andrew Schneider @ 16:05

A juror wept as a clerk stood before Judge Donald Molloy’s bench and reported that W.R. Grace and Co. and three of its former executives were not guilty of charges brought by the government in the nation’s largest environmental crime trial in history.

I’d love to know why she was crying. She wasn’t alone.

The trial took ten weeks, and the clerk’s reading of the verdicts of the jury’s six men and six women was done in just 3 ½-minutes.

Saying it was the longest trial he’d ever been involved in, Molloy dismissed the jurors , who deliberated for less than two days,  and said: “It is I think truly a reflection of how we are supposed to govern ourselves. Ultimately it is the people of the community who have to make a decision.”

The verdict, joyful to some and painful to many, was no surprise. Most of the observers in the court gallery expected, at the most, a guilty verdict on only one of the eight counts, such as obstruction of justice.

The heavy charges of conspiracy and knowing endangerment that carried long prison sentences were taken out of play early as Molloy imposed repeated restrictions and limitations on what evidence and witnesses the prosecution could use.

“It’s unfortunate that so much evidence was withheld from the jury by the district court’s evidentiary rulings, including some of the most compelling internal memos written by W.R. Grace officials about the harmful effects of their mining operations,” said David Uhlmann, who led the U.S. Justice Department’s environmental crime section when the Montana U.S. Attorney’s office sought to bring the charges in this trial.

Uhlmann, who is now professor and director of the Environmental Law and Policy Program at the University of Michigan Law School, added: “Many questions now linger about what would have happened if the trial had been conducted in a manner that was fair to everyone involved. “

Editorial cartoon by Stephen Templeton The Flathead Beacon

Editorial cartoon by Stephen Templeton The Flathead Beacon

Speculation is rampant on why the government lost today.

We can talk about the prosecution being heavily outnumbered.

It had fewer than a dozen lawyers, investigators and support personnel. Grace fielded 50 or more and almost daily swamped the court with motions and briefs cranked out by their paralegals and junior lawyers. The prosecution had most of its team working to midnight and beyond almost every night just to respond to the avalanche of paper.

We can weigh the impact of Molloy sitting moot day after day while Grace’s superstar lawyer David Bernick hammered away with bogus, inflammatory accusations of misconduct by members of the prosecution team.

We can try to compare the effectiveness of Bernick’s fiery, dramatic, comedic performances as he trashed witnesses and prosecution alike to the low key, soft spoken questioning of lead Prosecutor Kris McLean.

For weeks, lawyers who had watched McLean in earlier trials said his “solid delivery” would win the day. Two Montana-based lawyers working for Grace as local counsels, told me repeatedly that a Montana jury would never be impressed with Bernick’s antics and “scrawling over whiteboards larger than himself.”

I’m sure it was only a coincidence the jury foreman was the same man who almost always laughed at Bernick’s attempts at humor.

My best guess for the jury’s verdicts was the blatant clues of disdain that Molloy heaped upon McLean and his case day after day.

Uhlmann said, “It’s also hard to know how much the jury was influenced by the district court’s hostility to the government’s case.

”It always was going to be a difficult case, and the way the trial was conducted made it all the more difficult.”

The top environmental crime lawyer said it was not impossible for the government to win.

“Jurors often can see through the smoke screen of judicial hostility and defense counsel’s antics, but it is hard to fault the jury in this case. On the record before them, and with everything else going on in the courtroom, they did the best they could,” he explained.

From the very start, Molloy was making his mark on the prosecution’s effort. When U.S. Attorney Bill Mercer tried to announce the indictments four years ago, Molloy would not allow him to do it in front of the federal building. Mercer, who is openly hated by Molloy, had to hold his press conference on the steps of the county courthouse.

Of course, the reason for the not guilty verdicts may just be that W.R. Grace was totally innocent of all aspects of the poisoning of Libby and its people.

Wall Street thinks so. Shares of the company rose more than 30 percent on the news of the acquittal.

“We at Grace are gratified by today’s verdict,” said company president Fred Festa. “We always believed that Grace and its former executives had acted properly and that a jury would come to the same conclusion when confronted with the evidence.”

Gayla Benefield, a longtime activist in the fight against Grace said, “They’ve gotten away with murder again, and that’s just the way it will always be.

“I think of my family and friends, dozens of them, who died because of exposure to asbestos from Grace’s operation and I really pray for the day that someone, anyone, can tell me why they are not guilty,” she told me this afternoon.

I’m going to give everyone a couple of weeks to cool down and then I’ll try to talk to the jurors, witnesses and lawyers on both sides to see if I can find out what really happened.

Meanwhile, in Washington, D.C, U.S. Sen. Patty Murray said, “Today’s disappointing verdict is a reminder of the urgent need to ban asbestos in America. The families of Libby, Montana have suffered enough, and my thoughts are with them today.”

For more than seven years, Murray, a Washington State Democrat, has fought to get a complete ban of the deadly fibers.

“Asbestos destroys lives, and the tragedy at Libby has shown that it can devastate entire communities. We must move forward to protect America’s workers and families once and for all,” said Murray.

Uhlmann cautions that no one should lose sight of the fact that it was a tremendous accomplishment to investigate and prosecute Grace.

“While the outcome is disappointing, the only tragedy in this case is what happened to the town of Libby, Montana, “he said.

May 6, 2009

URGENT: After ten hours of almost non-stop closing arguments, the W.R. Grace criminal case has gone to the jury.

Filed under: Government & corporate wrong-doing,W.R. Grace — Andrew Schneider @ 16:35

Molloy’s instructions to Grace jury had some weird omissions.

Filed under: Asbestos,Government & corporate wrong-doing,W.R. Grace — Andrew Schneider @ 13:20

It took an hour for Judge Donald Molloy to give the jury its instructions.

Most sounded like a straight lecture on the eight criminal charges in the indictment, and he asked both the defense and prosecution to object or accept each of the 50-plus instructions. Grace’s side objected to many of them to reserve a right of appeal. The government didn’t like a handful, but Molloy said the language stood as written.

Since the judge barred the public and press from point-by-point debate with the lawyers last night we may never know what arguments were made.

There were one or two surprises in the judge’s order to the jurors. He told them that they should be aware that EPA headquarters did not give Grace lawyers email from John Malone, a headquarters’ pollution policy worker who repeatedly denounced the actions of Paul Peronard and his emergency response team.

Several of Malone’s emails and statements had been shown to the jury yesterday, and the defense treated them as the Holy Grail in proving that everything EPA had done was wrong and not based on science.

What the jury will not be told was that Malone retired years ago, and the agency’s computer system routinely purges emails that old. Nor will they learn that Malone’s science background was minimal compared with scores of others in his department who supported the Libby cleanup.

Nevertheless, Molloy made it sound like the unavailable email was concealed intentionally to the detriment of two of the three remaining defendants — Jack Wolter and Robert Bettacchi.

The judge also told the jury to ignore comments made by prosecution witness Dr. Alan Whitehouse when he predicted that illnesses would continue to surface. The jurors were also told to not consider Whitehouse’s statements on the source of the asbestos-related disease that has killed and sickened hundreds of his patients.

Whitehouse has and continues to diagnose and treat. When the mine was still open Grace itself sent miners to Whitehouse.

So you figure out why the opinions on the source of the disease from this highly experienced pulmonologist should be something the judge wanted kept from jurors trying to decide guilt or innocence.

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