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United States v. W.R. Grace

ELR Citation: 37 ELR 20244
Nos. Nos. 06-30472, -30524, (9th Cir., 09/20/2007)

The court reinstates a number of claims the U.S. government filed against a mining company in connection with its vermiculite operation in Libby, Montana, that were dismissed by a lower court. The company was indicted for knowingly conspiring to release asbestos into the ambient air, thereby knowingly placing persons in imminent danger of death or serious bodily injury in violation of the Clean Air Act (CAA), and for conspiring to defraud the United States in violation of 18 U.S.C. §371. Contrary to rulings of the lower court, the government's knowing endangerment charge was not time barred. Although the government failed to allege necessary overt acts in its original indictment, it timely filed a superseding indictment, thereby curing this flaw. The court also reversed a lower court order adopting the regulatory definition of asbestos used for civil regulation. Instead, the court directed that the definition in the criminal statute, i.e., the definition provided in CAA §112(b), applies. In addition, the lower court properly excluded indoor air studies and other scientific reports, but it erred in excluding them—and historic testing—as bases underlying an expert’s opinion or testimony.