James O'Toole, Jr., a shareholder and chair of the Environmental and Toxic Tort Practice Group in Buchanan Ingersoll & Rooney's Philadelphia office, was quoted in the July 2009 edition of InsideCounsel. The article titled, "Asbestos Acquittal: W.R. Grace Unexpectedly Wins Environmental Crimes Trial," discussed the dramatic turn that lead to the unexpected victory in the W.R. Grace environmental crimes trail.

As explained in the article, "The facts stacked against W.R. Grace & Co. in one of the largest criminal environmental cases ever were certainly compelling. The company's vermiculite mine in Libby, Mont., contaminated the town with asbestos over the course of decades. As a result, more than 200 townspeople have died of illnesses related to the contamination, and it has sickened as many as 1,200. The EPA has called it the worst case of communitywide exposure to a toxic substance in U.S. history."

O'Toole, who followed the high-profile trial, said, "There's certainly a tragedy of facts here, but that doesn't in and of itself equal a successful criminal prosecution. You could see how the government, in bringing this case, would be persuaded by the scope of the injury. But there were some fundamental flaws with their case."

Those flaws, the article noted, proved to be insurmountable. Grace and three of its executives were acquitted on all criminal charges.

According to the article, "The deciding blow came with Judge Donald Molloy's blistering jury instructions concerning the prosecution's failure to disclose the depth and duration of its relationship with a key witness, Robert Locke."

"The government took it on the chin with Mr. Locke", O'Toole said. "When a judge says that your main witness can't be trusted, that can't help your cause. This case was difficult when it started but became all but impossible when it came to light that the government had failed to adequately disclose its relations with the star witness."

Despite the outcome, some believe — including O'Toole — that this particular case will not set a precedent for future cases dealing with the EPA.

"I don't believe you're going to see the Justice Department or the EPA shy away from criminal prosecutions in the future simply because of some of these missteps in the past. The agency's proposed budget is going to have at least a $600 million increase, with $32 million for enforcement alone. They're going to hire 30-plus additional positions just to handle enforcement and investigation: When you have a robust budget and a focused agency, and a commitment supported by the administration, you can't help but think there's going to be greater scrutiny and enforcement across all environmental programs."