W.R. Grace & Co. (Grace) operated a vermiculite mine in Libby, Montana for several decades. The mine was closed in 1990. Hundreds of people in Libby have become ill due to exposure to asbestos, which is a contaminate found in vermiculite. Asbestos causes serious, often fatal, diseases, including mesothelioma, lung cancer and asbestosis.
A 2005 indictment by the U.S. government charged Grace and several former managers with conspiring to conceal the health risks. The case has been going forward with pre-trial discovery in Missoula, Montana. U.S. District Judge Donald Molloy has been overseeing the case and had made several pre-trial rulings on legal issues.
A trial had been scheduled for September. Prior to trial, several of the rulings by Judge Molloy had been appealed. A federal appeals court reversed a number of the pretrial rulings.
The 9th U.S. Circuit Court of Appeals overturned Judge Molloy’s ruling that the five-year statute of limitations precluded the charge that Grace committed an overt act to knowingly endanger others. The three-judge panel disagreed, and found that the lower court incorrectly interpreted the federal statute. Thus, evidence of Grace’s overt acts may be admitted at trial.
The appeals court panel also reversed Molloy’s decision regarding the definition of asbestos.
Molloy had interpreted the term “asbestos” to only include the six minerals listed by the U.S. Environmental Protection Agency. His ruling excluded evidence of all other asbestiform minerals. "This ruling eliminated from trial evidence of releases of 95 percent of the contaminants in the Libby vermiculite _ which are asbestiform minerals but fall outside of the six minerals in the civil regulatory definition". The panel ruled that asbestos need not include "mineral-by-mineral classifications to provide notice of its hazardous nature, particularly to these knowledgeable defendants."
Molloy had issued a ruling allowing Grace to use an affirmative defense established by the Clean Air Act for air pollutants released under "National Emissions Standards for Hazardous Air Pollutants." The panel disagreed. "The plain language of the statute makes clear that the affirmative defense simply doesn't apply in this case," the panel wrote. "The district court's order to the contrary leaves us with a 'definite and firm conviction' that it got the law wrong."
The September trial date has been vacated and no new date has been set.