W.R. Grace Challenges Ninth U.S. Circuit Court of Appeal’s Ruling on Asbestos Minerals

Grace Disputes Winchite, Richterite and Tremolite as Asbestos

MISSOULA, MT - May 15, 2008 - W.R. Grace & Co. filed a petition on April 14 with the U.S. Supreme Court to reexamine pretrial rulings stemming from criminal charges brought against the company. W.R. Grace is charged with breaking environmental laws and conspiring to cover up the dangers connected to the asbestos disaster at the company's Libby, Montana vermiculite mine.

W.R. Grace's petition requests the U.S. Supreme Court to interpret and rule on a decision made by The Ninth Circuit Court of Appeals regarding the type of asbestos minerals present at the Libby, Montana mine. W.R. Grace is arguing that the company cannot be prosecuted under the Clean Air Act for violations because asbestos minerals composed of winchite and richterite were not regulated under federal law at the time that the vermiculite mine was in operation.

Asbestos-Contaminated Minerals at the Libby, Montana Vermiculite Mine

From 1963 through 1990, W.R. Grace mined vermiculite, a mineral ore resembling mica, that is used in insulation, construction materials, and potting soil, in Libby, Montana. The vermiculite was contaminated with asbestos, a well-known carcinogen.

Although vermiculite is not asbestos or fibrous, by-products of the vermiculite are asbestiform amphibole fibers-primarily the minerals winchite and richterite. Those two minerals are under dispute in the W.R. Grace case. The U.S. Geological Survey has characterized the amount of asbestiform amphiboles contaminating the Libby vermiculite as approximately 84% winchite, 11% richterite, and 6% tremolite (American Mineralogist; November 2003; v. 88; no. 11-12; p. 1955-1969). It is the inhalation of these amphibole fibers and exposure to tremolite asbestos, winchite, and richterite that is believed to cause the high incidence of asbestos-related diseases in the Libby, Montana region.

W.R. Grace's Courtroom History

For over 150 years, W. R. Grace has been involved in areas of business ranging from shipping to consumer goods, fertilizer, and specialty chemicals. For the last 30 years, W.R. Grace mined vermiculite from the Libby, Montana mine, which was shipped to more than 200 factories throughout the nation to be used as soil conditioner and in loose-fill attic insulation. Up to 80 percent of the world's supply of vermiculite came from W.R. Grace's Libby, Montana mine. In fact, vermiculite still remains in millions of homes in the United States, Canada, and other countries. In addition, many residents and miners who were exposed to asbestos from the Libby mine developed asbestos-related diseases such as asbestosis, lung cancer and deadly mesothelioma.

Due to the mass exposure to W.R. Grace's vermiculite products, a class action lawsuit was filed in 2000, on behalf of thousands of individuals, homeowners and business owners whose buildings contained the asbestos-contaminated insulation. W.R. Grace entered bankruptcy in 2001 due to the growing abundance of asbestos claims stemming from the asbestos-contaminated vermiculite and their other asbestos-containing products. W.R. Grace also faced suits from the government's efforts to recover its investigation and environmental cleanup costs for asbestos removal at Libby, Montana.

In 2005, prosecutors began building a case against seven W.R. Grace executives for concealing information about the dangerous health effects linked to its Libby, Montana mine. The allegations against the defendants were serious. They were indited for knowingly putting their workers and the public in danger through asbestos exposure from the vermiculite ore, interfering with investigations by the Environmental Protection Agency, obstructing the government's clean up efforts, and wire fraud.

In a pretrial ruling the following year, U.S. District Judge Donald Molloy of Missoula threw out the charges of "knowing endangerment." He ruled that the time allowed to pursue the allegations against W.R. Grace had run out, and brought the prosecution to a halt. Judge Malloy's rulings also put limitations on the definition of asbestos, and prevented expert witnesses from using materials and evidence to present during trial.

In 2007, the Montana Judge was overruled in the W.R. Grace asbestos case by The Ninth Circuit Court of Appeals, writing that one ruling "eliminated from trial evidence of releases of 95 percent of the contaminants in the Libby vermiculite." (Missoulian News Online, October 17, 2007) The Ninth Circuit Court of Appeals ruled not to limit the definition of asbestos, saying that asbestos need not include "mineral-by-mineral classifications to provide notice of its hazardous nature, particularly to these knowledgeable defendants." (United States vs. W.R. Grace, United States Court of Appeals for the Ninth Circuit, September 20, 2007)

W.R. Grace is now responding by asking the Supreme Court to reverse the federal appeals court's ruling. The company's petition says the government "is trying to convict defendants of violating the Clean Air Act by releasing substances that the government itself has excluded from the list of substances covered by the act." (Flathead Beacon, April 16, 2008)

If the U.S. Supreme Court agrees to hear the case, the trial may not take place until October or November of this year. However, if the Supreme Court rejects the petition, than the Ninth Circuit Court of Appeals ruling will remain in effect, and W.R. Grace will head for trial in Missoula to face the criminal charges.

If you are interested in reading more about W.R. Grace, please visit:

  • Asbestos Contamination Trial - W.R. Grace and Libby, MT - February 20, 2009
  • W.R. Grace to Pay $250 million for Asbestos Cleanup in Libby, Montana - March 14, 2008
  • W.R. Grace's Asbestos Claims and Bankruptcy Future in Judge's Hands - January 18, 2008
  • Montana Judge is Overruled in W.R. Grace Asbestos Case - November 9, 2007

Asbestos Exposure and Your Legal Rights

For over 24 years, the asbestos attorneys at Brayton Purcell have been protecting the legal rights of asbestos victims, including injured workers and their families. Many of our clients suffer from asbestosis, mesothelioma, lung cancer, or other asbestos-related diseases. Located in California, with offices in Oregon and Utah, our experienced asbestos attorneys are there for you, providing support and understanding as well as legal advocacy nationwide.