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W.R. Grace Acquitted in Libby, Montana Asbestos Case

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A federal jury in Montana acquitted W.R. Grace and Company and three of its former executives last Friday of knowingly exposing mine workers and residents of Libby, Montana, to asbestos poisoning and then covering up their actions. The government has called this the nation’s biggest environmental disaster. Hundreds of miners and residents of Libby have died, and at least 1,200 more have developed cancer or lung disease from exposure to the asbestos-containing ore from W.R. Grace’s vermiculite mine. [includes rush transcript]

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StoryApr 22, 2009Environmental Crimes Trial Underway Against W.R. Grace for Widespread Asbestos Exposure in Montana Town
This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: A federal jury in Montana acquitted W.R. Grace and Company and three of its former executives last Friday of knowingly exposing mine workers and residents of Libby, Montana, to asbestos poisoning and then covering up their actions.

The government has called this the nation’s biggest environmental disaster. Hundreds of miners and residents of Libby have died. At least 1,200 more have developed cancer or lung disease from exposure to the asbestos-containing ore from W.R. Grace’s vermiculite mine. But on Friday, after a ten-week trial, the jury announced its verdict, acquitting W.R. Grace of all crimes connected with the asbestos poisoning of Libby.

Several legal experts have raised questions about the evidence that was withheld from the jury because the judge deemed it overly prejudicial. David Uhlmann, University of Michigan law professor and former environmental crimes prosecutor at the Justice Department, told the Pulitzer Prize-winning journalist Andrew Schneider that, quote, “Many questions now linger about what would have happened if the trial had been conducted in a manner that was fair to everyone involved.”

In a written statement, Fred Festa, the chairman, CEO and president of W.R. Grace, said he was, quote, “gratified” by the verdict. We invited W.R. Grace on today’s broadcast, but they refused to come on.

I’m joined now by two women from Montana who have been closely following this issue. Gayla Benefield has been an activist and advocate for victims of asbestos exposure for many years. Both her parents died from exposure to asbestos. She and her husband both have the disease. Thirty members of her extended family have been affected. She joins us on the phone from Libby, Montana.

And we’re joined via Democracy Now! video stream by independent Montanan journalist Andrea Peacock, former editor of the Missoula Independent. She is author of Libby, Montana: Asbestos and the Deadly Silence of an American Corporation.

We welcome you both to Democracy Now! Gayla Benefield, you’re in Libby right now. It happened around noon on Friday, the verdict, word of the verdict getting out in Missoula. What was the response in Libby?

GAYLA BENEFIELD: I think everyone was more or less stunned at the verdict. It was sort of shock, disbelief. People here couldn’t imagine them being not guilty.

AMY GOODMAN: Andrea Peacock, can you explain, from your observation of this ten-week trial, what you think were the reasons for the acquittal and this issue that the University of Michigan law professor raised about the withholding of information by the judge?

ANDREA PEACOCK: The charges were going to be very difficult to prove, to begin with. Grace operated the mine between 1963 and 1990. In 1990, they closed the mine. That was also the year that the Clean Air Act provisions that Grace was accused of violating went into effect.

When the news broke in 1999, the statute of limitations began running, and the charges weren’t brought until 2004. So, with a five-year statute of limitations, it was a pretty narrow slice of time that prosecutors had to work with, to begin with.

And then, when the rulings began falling the way of the defense time after time after time, it just turned that very difficult case into what was probably an impossible case, with respect to the conspiracy charges and, I think, the Clean Air Act violations. There wasn’t much else that the jury could do.

I thought that the prosecutors made their case with regard to the obstruction of justice charges. It boggles my mind that the jury didn’t convict on those.

AMY GOODMAN: Talk about the men who were acquitted, the three executives, Gayla Benefield, W.R. Grace Company, its history in Libby, for people outside of this town to understand the scope of what you have been dealing with.

GAYLA BENEFIELD: Well, W.R. Grace, of course, as most people have learned by now, had been operating in Libby, had purchased the mine in 1963. And throughout the time of their operation, until 1990 when they shut down, they always had a continual, as they call it, dust problem.

But their biggest issue was the fact that they never released the fact that the dust was contaminated with tremolite asbestos and their product that they manufactured here, the vermiculite, was contaminated with a tramp fiber. And this fell between the cracks of any type of laws whatsoever, because it was a tramp fiber. They weren’t mining asbestos in Libby; they were mining vermiculite. And so, W.R. Grace managed to simply skirt the law, it seemed like, for a period of nearly thirty years up here by producing this product that was contaminated.

And only when they were finally forced to start labeling the product that it might contain asbestos, that there might be exposure if the product is disturbed, did the company start tightening and finally end up shutting down because of the inability to sell the product.

And the men involved, each man — I had read — I have probably 10,000 legal documents from the civil trials that were held in Libby, which we won, by the way — the jury pronounced them guilty on each — at each trial for the exposure to a certain person or a certain person’s illness. These men’s names were on the documents, the documents that the jury should have been able to look at. And they’re very damning documents.

Bluntly, in reading the documents, Libby was collateral damage. The company was here to make money, and the men who worked here were simply collateral damage. And it was easier to pay a small amount of reimbursement to families or to men who became ill than to simply shut down the mine. So, for years, it was a cover-up. And the upper management, the men that were on trial, were all well aware of the dangers posed.

Two of the men stated that they even had family members working at the mine, and for some reason, my own brother-in-law was a monthly man or a boss at the mine, you might say, and even his impression was he was working in a safe area. The other men, of course, were not. But his job was in a safe area. And I think this was the logic to the men who had their families working up there and going back and forth to the mine, that they knew where safe areas are, when in all reality there was no safe area up there.

And so, after having studied all of the evidence for so long and so many years, I was totally appalled that these pieces of evidence could not be brought out at the trial. The jury was not able, because of the time frame and the statute of limitations, etc., etc. These men weren’t prosecuted at all.

AMY GOODMAN: Andrea Peacock, the chief prosecution witness, the revelations coming out of not revealing how much he had met with the prosecutors?

ANDREA PEACOCK: Yeah, a fellow named Robert Locke, who’s a former Grace executive, was an unindicted co-conspirator, and he testified for the prosecution. And the defense made a lot of bad inconsistency in his testimony, basically turning the fact that he testified he had met with prosecutors and the prosecution team, you know, a half-a-dozen times, when in fact there had been many more contacts, you know, phone contacts and — you know, when he had met for three days, he counted that as one as opposed to three. The defense turned that into full-scale government corruption, as though they were trying to hide the nature of their relationship with this witness, when in fact it was just a matter of how you count. And I don’t think there was anything more than an honest mistake in there. And I’m not sure how much that actually figured into the jury’s deliberation. It would be interesting to know.

AMY GOODMAN: Gayla Benefield, is it possible that the residents of Libby were just out-lawyered? Who represented the side of the Libby residents? Who represented W.R. Grace?

GAYLA BENEFIELD: Well, we were represented by the United States attorney general’s office and Chris McLean and the team, and who are very skilled at what they do.

And yes, in a sense, they were out-lawyered, but I think our biggest problem — and I will say this probably ’til the day I die — is the best defense that the defense team had was the actions of the judge within the trial. The judge seemed very biased from the first day on. He simply reduced the trial into a — literally a three-ring circus, because we weren’t allowed to admit evidence. Whenever our lawyers, it seemed like, even spoke up, there were numerous objections.

And we — from the first day, it seemed like suddenly the whole trial was turned, and it was Libby, Montana, and the victims and the federal government that were on trial. And in this sense, yes, we were outlawyered, but I really felt that a jury should have been able to see through this, because it was almost a kangaroo court to watch this trial unfold. It was —-

AMY GOODMAN: Will the government be appealing?

GAYLA BENEFIELD: I don’t really think they can. I haven’t talked to anyone in that capacity since. I doubt very much if they can appeal. This is a not guilty verdict. So I really don’t know what the next step would be.

AMY GOODMAN: What does this mean for the residents right now of Libby? When we last spoke to you when we were on our tour through the country, “Community Voices, Community Media,” your husband was just coming out of the hospital. This was when we were in Montana. What does it mean for your family, where you stand, as well as others?

GAYLA BENEFIELD: Well, I think the biggest issue right now is going to be what W.R. Grace is going to do next. W.R. Grace is providing a medical program for the people diagnosed with the disease in Libby, and it does pay a good bulk of our prescriptions and medical bills. And that was something that -— that if this is taken away, it’s going to be devastating to the people of Libby and to the people struggling with this disease right now, and to the pharmacies, to the hospital, to everyone. And we really don’t know what is going to happen next.

The next thing we have to face is the bankruptcy. And with the not guilty verdict, Grace could easily go before the bankruptcy judge and simply say that “We don’t owe the city of Libby anything, because a federal court and a jury pronounced us not guilty.” So we’re all sort of wondering right now what the next step for Grace is going to be, and considering the arrogance of this company from the onset of this whole situation, everyone is just sort of in limbo right now and waiting for the other shoe to drop to see what is going to happen to Libby.

But no matter what, the same people that were sick are still sick. The same people that have died would have died. And this will continue on for twenty to forty years, with or without the assistance of W.R. Grace or possibly the federal government. And I think the next step will have to be that the federal government will have to call a public health emergency and start assisting the people of Libby, if Grace is completely out of the picture.

AMY GOODMAN: And your and your husband’s health? How are you?

GAYLA BENEFIELD: We’re alright today. We continually have to watch ourselves for any type of infections, colds, things like this. Our lifestyle has slowed down considerably because of the disease. There’s a lot of things we can’t do that we should be able to do. And —-

AMY GOODMAN: And explain exactly what the disease is.

GAYLA BENEFIELD: Well, what happens is, this fiber is a needlelike fiber, and it invades the lung and goes to the pleural lining of the lung, the outside sack of the lung. And it starts to form calcium. It’s the body’s own immune system that reacts to it. And the short story is that instead of having a lining on your lung or your diaphragm, the -— like Saran Wrap, very thin, it will turn around and become like an orange rind, and it slowly strangulates you. And this is something that — this is a progression of the disease that eventually does kill someone, if it doesn’t go cancerous. And in my own mother’s case, her diaphragm on x-ray looked like a grapefruit rind, and her lungs were simply like two sausages hanging on sticks, because they had been shrunk down by this continual scar tissue forming in the lining of her lungs.

AMY GOODMAN: It’s called asbestosis?

GAYLA BENEFIELD: Well, actually, it’s called asbestos-related disease. This isn’t a shipyard asbestosis that affects the lung itself. This affects the lining of the lung. And there’s where the difference is, because W.R. Grace in trial stated there were only fifteen people in Libby with asbestosis, I believe. And by the standard government regulations of asbestosis, probably that’s right. But ours is, and they have found it’s an entirely different form of asbestos-related diseases from asbestos exposure, because of the way the fiber reacts in the body.

AMY GOODMAN: Gayla Benefield, I want to thank you for being with us, speaking to us from Libby, Montana, suffering from asbestos-related disease, as are thirty members of her extended family. Andrea Peacock, former author of — editor of the Missoula Independent and author of the book Libby, Montana: Asbestos and the Deadly Silence of an American Corporation.

When we come back, we’ll stay in Montana. We’ll bring you part two of our conversation with Doug Peacock, survived Vietnam, came back to face the wilderness here at home to help recover from PTSD. Stay with us.

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