Saving Grace 

Four years after U.S. attorneys first filed charges against W.R. Grace executives, the criminal trial finally begins this February in Missoula. For the prosecution, it may be too late.

Clerk of Court Susan Farmer proudly buzzes around a packed storage room on the second floor of the Lincoln County Courthouse in Libby.

“I’m not sure what you’re interested in,” she says, rifling through a stack of files. “Everybody comes up here looking for something different.”

The buckling shelves and corpulent folders of her reserve contain everything anybody could possibly want to know about W.R. Grace’s northwestern Montana operations and the resulting asbestos contamination: decades old photos, copies of corporate correspondences, piles of depositions, maps, plots and detailed medical records. The little storage room—no more than 400 square feet—holds more information about the alleged conspiracy than any one person could read in a month, and certainly more information than jurors in the upcoming criminal trial will ever see.

From 1996 through the end of the decade, the four-person office faced the challenge of organizing the case files of several hundred civil lawsuits against the company, brought by former employees and their families. Farmer characterizes her job during this time as a “Grace clerk” and still holds binders cross-referencing exhibits and depositions shared between the vast network of plaintiffs.

It was at the end of this period that investigative journalists began poking around. With the evidence already compiled, an outburst of reports in late 1999 brought the Environmental Protection Agency (EPA) into town. By then, more than 200 Libby residents had already died of asbestosis or mesothelioma—two rare and fatal conditions exclusively caused by asbestos exposure.

Considering the amount of information present in this one room, it’s astonishing that it took until the autumn of 1999 before the public even began to reach awareness about the scope of contamination in Libby. More astonishing is the fact that the suspects indicted in the case on Feb. 9, 2005 have yet to face a jury trial. The reason lies partly with the judicial process. In four years of courtroom wrangling, questions as to the admissibility of evidence located in Farmer’s office went all the way from Missoula to the doorstep of the U.S. Supreme Court, and back again.

“I think they’re going to try to get out of it, by hook or by crook,” says Norita Skramstad, whose husband Les became the first former W.R. Grace employee to win an actual jury award in 1997. “They seem to manage to skirt everything—one way or the other.”

Forty-five years have now passed since W.R. Grace purchased Zonolite Mountain and the vermiculite processing and export plants there. At the upcoming trial—scheduled to begin Feb. 19, 2009—the U.S. attorneys intend to prove W.R. Grace executives Robert Bettachi, Robert Walsh and Jack Wolter, industrial hygienist Harry Eschenbach, mill manager Bill McCaig and attorney O. Mario Favorito conspired to keep the truth about asbestos contamination secret from the federal government for more than a quarter century—contamination that has claimed the lives of hundreds of Libby residents. Like many of W.R. Grace’s alleged victims, the prosecution’s case is literally dying as time drags on.

“Les really wanted to live long enough to see the trial,” Skramstad says. “He always said he wanted to sit in the front row and listen to all their lies so he could dispute.”

Les Skramstad died of mesothelioma and was buried in the Libby Cemetery on Jan. 29, 2007.

The union
Union man Harold Shrewsberry died and was buried in the Libby Cemetery on Oct. 22, 1994. With him passed a definite source of information about what W.R. Grace told its workers regarding asbestos. Few outside of the alleged conspiracy could have known more.

While serving as president of the International Union of Operating Engineers’ Local 361, Shrewsberry “had a talk with [W.R. Grace] about posting the harm asbestos can do to people,” according to union minutes dated April 15, 1968. Whatever came of these talks remains a mystery, though the company took some steps to mitigate the asbestos risks—albeit several years later.

Wage workers from this period claim that the company referred to the asbestos contamination as a “nuisance dust” and effectively denied them the use of adequate and functional protective gear. During the 1970s, W.R. Grace posted signs with vague warnings around some of its facilities and, in 1974, opened a new vermiculite processing plant designed to reduce the amount of dust in the air.

Even after the new mill opened, some workers later developed asbestosis despite having only worked for W.R. Grace a few years. The question that came up in nearly every civil case during the ’90s: Did the company’s rank-and-file miners and millers know that the dust they worked in was heavily contaminated with asbestos and a health hazard? The union leaders knew that much, even if they had yet to learn the extreme toxicity of Libby’s asbestos strains. Whether or not they impressed that knowledge upon the W.R. Grace wage employees is another question—one posed to union representative Bill Melcher in a 1997 deposition.

“At the time, I thought so. I don’t know whether I did a good job getting it across or not,” Melcher replied.

The leaders of the 361 definitely knew enough to serve curiosity—they provided the only real scrutiny of the asbestos contamination prior to W.R. Grace acquiring the operation in 1963. Minutes entries from as early as 1958 mention hazardous dust and one reports, “It was decided that the company (then Zonolite Co.) should do something to correct the situation.” Soon after that resolution, the outfit formed a special committee to investigate the dust problem.

In 1961, one member of the Safety Committee, Art Bundrock, met Benjamin Wake, a young Montana public health official. Wake first arrived in Libby in 1956 and, according to his reports, instantly recognized that the asbestos in the air exceeded safe levels. W.R. Grace successfully lobbied the state to label the reports—Wake drafted five total—as confidential. Wake eventually grew frustrated that progress was not being made at the mill.

“He says [Montana] has no law with any teeth to it,” Bundrock wrote in a letter to a national union rep. The same letter stated that Wake would make available his progress report issued the following year. The results were not good, but it’s unclear whether Wake’s bosses passed the information along to the Local 361.

Bundrock died of asbestosis and was buried in Libby Cemetery on July 17, 1998. Wake, now 84, lies bed-ridden in his Salt Lake City home, physically unable to give interviews.

About the same time that W.R. Grace officials became concerned with Wake’s findings, an employee named Lilas Welch filed for disability in 1966 under the belief that mill dust had caused his respiratory conditions. The resulting challenge by W.R. Grace nearly took the matter to trial, but company officials eventually panicked over what the plaintiffs might learn from discovery. Union minutes report that the company “settled” with the former employee for $10,000, marking, by all accounts, the first asbestos-related settlement in Libby.

Welch died of asbestosis and was buried in Libby Cemetery on July 25, 1974.

The doctors
While examining the chest X-rays of Zonolite Co. employees in 1959, radiologist William Little became concerned with what he saw. Writing the local mill managers, he mentioned patterns in the lungs that seemed to resemble asbestosis.

A Zonolite Co. foreman who would later run the operation for W.R. Grace replied that the dust in the mill where the employees worked contained no asbestos. The official later clarified that he meant it contained no industrial-grade asbestos, and not the more lethal and virulent Libby amphibole strain that composed as much as 40 percent of the mill’s airborne dust at that time.

Little followed up anyway. Along with local hospital specialist James Cairns, he set out reviewing the X-rays of some 130 employees, finding abnormalities in roughly 30 percent. The duo’s X-ray work formed the basis for future inquiries by W.R. Grace into its asbestos problem. A 1967 internal correspondence states that outside of Grace, only Little knew of the studies (they were mistaken; Cairns did as well).

Cairns died and was buried in Libby Cemetery on Nov. 28, 1980. The Independent was unable to locate Little, who left Libby almost 30 years ago, former associates say.

In 1978, Richard Irons, a physician and Libby newcomer, became the Lincoln County Public Health Officer. He began noticing a strange commonality in ordinarily rare lung conditions among company employees.

Later that year, Irons approached W.R. Grace Health and Safety Director Harry Eschenbach—a defendant in the upcoming criminal trial—to propose an on-site study of the health hazards of asbestos dust at the Libby plant. Irons later testified that Eschenbach listened to his pitch, but seemed genuinely unresponsive. The following spring, the doctor threatened to make the information public.

In an April 10, 1979 memo to company executives, including co-defendant Jack Wolter, Eschenbach discussed the dilemma.

“Irons is ‘turning the screw.’ He is apparently looking for financial support from W.R. Grace to do a study of Libby Zonolite employees,” he wrote. “We either play the game his way or he is going to blow the whistle. I have not decided what the best response is to this thrust at this time.”

Ultimately, W.R. Grace never approved Irons’ study or permitted him access to the record of chest X-rays they began collecting a decade earlier. Irons tried lobbying the Lincoln County Board of Commissioners to press the issue, but discovered an unwillingness to scrutinize the region’s leading employer. Eventually Irons’ efforts made him unpopular.

In an interview with Seattle Post-Intelligencer investigative journalist Andrew Schneider for his 2004 book on Libby, An Air that Kills, Irons said the community grew hostile after he challenged W.R. Grace.

“The wife of a Grace manager stopped me in the grocery one day. She screamed that I was a horrible man bent on closing the mine. She even cursed at me,” Irons told Schneider. “Grace and the town leaders couldn’t keep me quiet, so they chased me out.”

Sometime in the early ’80s, a search of Irons’ hospital locker landed him a rap for misusing prescription pain medications, which he became addicted to after a 1979 climbing accident in the Cabinet Mountains.

His associates from that period—local physician Brad Black and County Nurse Karol Spas-Otte—did not respond to requests for comment.

Irons resigned his county post in 1985, sold his practice and moved to Helena. He later moved to Seattle, then Lawrence, Kan., where he died March 4, 2002 at the age of 53.

The researchers
According to court records, Eschenbach—a doctor by training—became the head of industrial safety for W.R. Grace in 1977. By that time he had already personally compiled information on the prevalence of lung abnormalities among W.R. Grace employees in Libby. Eschenbach wrote to Wolter in the front office on Aug. 23, 1976 that 63 percent of all Libby workers with more than a decade of service exhibited the signs of lung disease.

In Eschenbach’s first year on the new job, William Smith, a cancer researcher at Fairleigh Dickenson University, began work on a study commissioned by W.R. Grace executives in 1976. The experiment injected laboratory hamsters with tremolite—the general asbestos family of Libby amphibole—to measure the incidence of mesothelioma. W.R. Grace allegedly forbade Smith from publishing the results of his work, but the findings now exist both in the court record and in documents posted by the National Institute for Occupational Safety and Health (NIOSH).

Ten hamsters developed the extraordinarily rare form of cancer, which is in line with the clinical phenomenon that Irons began noticing about the same time. The United States’ regular incidence of mesothelioma in the 1970s measured about 4.5 cases per million people. If Libby followed the national trend, its population would be roughly on par with Chicago’s.

“Our major problem is death from respiratory cancer,” Eschenbach wrote in 1982. “This is no surprise.”

W.R. Grace shelved Smith’s data, which wouldn’t emerge again until personal injury attorneys unearthed it from a Boston storeroom almost two decades later. The topic of tremolite disappeared from the record until Dec. 11, 1981, when two employees of an O.M. Scott garden products bagging plant in Ohio sued W.R. Grace for health problems resulting from asbestos exposure. Soon after, O.M. Scott bagged the use of W.R. Grace vermiculite in its products.

Meanwhile, a young researcher, James Lockey, suggested in a series of articles published throughout the early ’80s that a high incidence of pleural lung disorders among the bagging plant employees in general might share the same cause.

On May 27, 1983, Wolter invited Eschenbach and W.R. Grace executive Robert Walsh to meet with Lockey. The researcher presented his data, showing a correlation between the asbestos exposure and pleural buildup in the lungs of plant workers. It wouldn’t be the last time he discussed the matter with company officials.

“Grace would say, ‘Are you sure these are asbestos fibers? They may not be,’” Lockey told the Trenton Times in a 2005 story about a Grace vermiculite processing plant.

Lockey remained engaged in the tremolite issue, launching a study earlier this year looking specifically into the health hazards of Libby amphibole. He declined to comment in this report due to his involvement as an expert witness in the upcoming trial—a status still in limbo. Like much of the prosecution’s scientific data, W.R. Grace’s attorneys challenge Lockey’s current knowledge as irrelevant to what their clients were informed of in 1983.

“That’s a good argument,” says David Egilman, a heath policy professor at Brown University who specializes in asbestos. “The only people who know about tremolite were the people at Grace, because they did the studies on their workers and they did the animal studies.

“That would be my defense, actually. I’d come in and say, ‘Hey—nobody knew shit about tremolite.’”

One person knew, as of 1978, at least something about tremolite other than W.R. Grace officials, but William Smith died in Santa Monica, Calif., on Feb. 6, 2004.

The Libby guy
When mining operations ceased in 1992, W.R. Grace began looking at liquidating some of its assets in Libby.

The following year, the company sold the screening plant—a processing facility for the post-milled ore—to Mel and Lerah Parker, who ran a plant nursery. It dealt a shipping facility pinned between the Kootenai River and the BNSF Hi-Line to the city of Libby in 1994. Neither the Parkers nor the city knew very much about the state of the property they just purchased and both allege that W.R. Grace didn’t disclose much, if anything, about asbestos contamination.

W.R. Grace’s man up in Libby, plant general manager Alan Stringer, organized both sales.

“Stringer said, ‘Why don’t you folks come out and look at the screening plant … I think it would meet your needs,’” Mel Parker remembers. “We asked Mr. Stringer if there was any contamination on the property. He said, ‘No, there’s no contamination on the property at all.’

“In 1999, everything went down the tube.”

Neither purchase ultimately worked out very well. To this day, the EPA continues to struggle with cleanup and restoration of the export plant, which the city converted to a riverfront park in the ’90s. The Parkers, meanwhile, essentially lost their business when EPA Superfund crews rolled in and ripped apart their property. Both Mel and Lerah Parker went in to get tested after the story broke; both received positive diagnosis of asbestos-related disease.

“Yes, sir—we got it,” Parker says.

In the grand scheme of asbestos-related mortality in Libby, the story of the Parkers and others who leased, bought or received contaminated property might seem mild. However, the Clean Air Act, federal legislation under which indicted W.R. Grace officials face the most serious penalties, includes a statute of limitations that restricts the prosecution to a specific period of the alleged conspiracy. In fact, W.R. Grace attorneys successfully convinced U.S. District Court Judge Donald Molloy in 2006 that the prosecution’s case exceeds those parameters. The Ninth Circuit Court of Appeals reversed Molloy’s decision.

Stringer worked as the mine manager when W.R. Grace donated tailings to the school district for the construction of athletic facilities in the early ’80s. D.C. Orr—who still works in Libby as a general contractor—assisted in the installation of vermiculite to line a skating rink at Plummer Elementary. The presence of asbestos in the material was no secret, he says, but nobody outside of W.R. Grace had even heard the word tremolite.

“We didn’t understand the ramifications,” Orr says. “We were a bunch of hillbillies, I guess. I was only 17 or 18 years old, so I was bulletproof.”

Stringer stayed on as W.R. Grace’s main guy in Libby after the mine’s closure in 1992. He participated in community events and clubs, helped run the Libby Chamber of Commerce and served on the board of directors for St. John’s Hospital. The community figure made a logical choice for company spokesman after the asbestos story broke, and allegedly oversaw an effort to obstruct the EPA’s efforts to investigate the scope of contamination. He personally furnished information later proving to be false and denied the agency access to the mine, which cleanup foreman Paul Peronard sued over shortly after the Superfund declaration.

Stringer eventually left Libby and moved to Oak Harbor, Wash., where he lived when the 2005 federal indictment named him as one of the original seven conspirators. He died of lung cancer on Feb. 24, 2007 at the age of 62.

“Alan has passed on. I have very strong feelings because it had a very strong impact on my wife and I, and of course this whole community,” Parker says. “I don’t have any proof about what he thought or what he didn’t think, but what he did sure had a hell of an impact on us.”

The boss
In 1992, during one of the first civil cases by a W.R. Grace employee, the plaintiff’s attorney asked the plant’s longtime on-site manager if he ever hid medical information—like the X-rays examined by Little and Cairns—from his employees.

“Well, I don’t know what you mean by hiding the medical information,” Earl Lovick replied, “but we never refused to answer any questions that any of our employees would have had about their medical condition.”

It later came out in the testimony that the company, in fact, during the ’60s and most of the ’70s chose not to disclose medical reports directly to the stricken employee as a matter of policy. This supposedly changed after 1977, when the company began conscripting scientists—like the late Dr. Smith—to look into the toxicity of Libby amphibole. Former employees later alleged that these meetings often downplayed the occupational hazard as a cause of the condition, but hardly any remain alive today to elaborate.

W.R. Grace foreman Donald Riley was one such employee. In a 1996 deposition, he describes a meeting with Lovick and “some East Coast doctor” after his X-rays came back showing the early signs of asbestosis.

“In 1981, [my X-rays] come back and I got a call off the hill one day to Earl Lovick’s office,” Riley said. “The first thing Earl told me is, ‘Riley, if you don’t quit smoking you’ll be dead in five years.’ That is all he said.”

At the time of the deposition, Riley was operating at 35 percent of his lung capacity. He died of asbestosis and was buried in the Libby Cemetery on March 1, 1997.

If any one person could definitively explain how much W.R. Grace knew about the danger of asbestos released by the vermiculite mine, it would be Lovick. He worked for Zonolite Co. from 1946 until his retirement from W.R. Grace in 1983, during which time he likely held countless such meetings and discussed the asbestos issues with every rung of the corporate ladder.

In one 1979 company memo discussing the emergence of “bloody pleural effusions” in the lungs of some employees, W.R. Grace executive Bob Oliverio told his associates that if they came across a questionable medical report to “Pull it, discuss it with Eschenbach, and [Harry] Borgstedt will call Earl Lovick about it.”

Lovick appears in other letters and memos from the same period, including several that acknowledge the presence and concentration of Libby amphibole asbestos, the probability of its carcinogenic properties and its ability to cause asbestosis. Documentation shows Lovick was aware of Grace’s examination of employee medical records, even before the Delaware firm owned the mining operation. Furthermore, Ben Wake’s reports from the ’50s and ’60s list the direct recipients as the outfit’s three managers: Lovick, Butch Bleich and Walter Baker.

Bleich died of lung cancer and Baker of asbestosis. They were buried at the Libby Cemetery on April 2, 1968 and Nov. 15, 1983, respectively.

Lovick also gave several depositions on behalf of W.R. Grace from 1983 onward, for which he was paid roughly $300 a day. The most revealing came in 1996 near the end of his life:

“In 1956, did you, did the company disclose to the employees that asbestos in the dust in the air was toxic?” asked attorney Jon Heberling.

“Not that I recall. No sir,” Lovick responded.

“Do you agree that as of 1956 in the dry mill, that it was not a healthy environment to work in?”

“Yes sir, I would agree with that.”

“As of 1956, did Zonolite do anything to inform the employees what asbestosis was?”

“Not that I recall. No sir.”

“So as of 1956, the company knew there was asbestos in the dust, correct?”

“Yes, sir.”

“And the company also knew that asbestosis was from inhaling asbestos dust, correct?”

“Yes, sir.”

“And the company also knew there were workers at Zonolite who were inhaling asbestos dust, correct?”

“Yes, sir.”

Earl Lovick died of respiratory problems seven months before the story broke. His cremated remains were interred at the Libby Cemetery on April 22, 1999.

‘Keeping the pot stirred’

The trial of the six W.R. Grace executives is scheduled to begin Feb. 19 at the Russell Smith Federal Courthouse in Missoula. While the body of paper evidence might appear overwhelming, much of it either predates the alleged period of conspiracy or has already been ruled inadmissible for a variety of reasons. As a result, the prosecution must prove the charges with considerably less information than the public record contains.

David Egilman, an expert witness in numerous cases of asbestos-related litigation over the years, argues the task of proving corporate guilt for environmental contamination is no small order.

“These documents are not as bad as in some cases. On a scale of one to 10, I’d give it a six … This is not an aberration,” Egilman says. “The interesting thing about the Grace case is that if these guys actually go to jail, that has a possibility of turning the whole system upside down.”

Much of the state’s chance at success depends on an initial proceeding in January that will review the admissibility of expert testimony. The Daubert hearing—named for the plaintiff in a 1993 ruling establishing the practice—challenges the relevance of witnesses on their qualifications and the merit of their findings.

“The whole point of Daubert is there was a whole lot of junk science coming in,” says Jeff Renz, a University of Montana criminal defense professor. “The hearing is held so that the judge may receive evidence at testimony as to whether this is junk science or not.”

Due to a judicial order, the U.S. Attorney’s office could not publicly elaborate on what witnesses might be contested in January, but the list most likely includes tremolite researcher James Lockey and Libby physician Alan Whitehouse. The latter first diagnosed scores of former Grace employees with asbestos-related disease in the ’90s before helping operate a clinic dedicated to treating—and compiling data on—tremolite sufferers.

While the historical narrative becomes relegated to paper and the grave, the court might also consider scientific data on the toxicity of Libby’s deadly form of asbestos too recent to enter into the four-year-old proceedings.
Because the EPA fumbled on this research at the beginning of the decade, the findings coming out now comprise the extent of specific knowledge on the specific toxicity of Libby amphibole.

At the same time, the statute of limitations on many of the charges is essentially running out and the living knowledge of the alleged conspiracy grows weaker. Even if the court simply delays the trial to ultimately allow the expert witnesses’ new data, legal scholars say W.R. Grace still comes out ahead.

“Keeping the pot stirred without having the case tried to a verdict—it’s consistent with their approach,” Renz says. “Delay favors the
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