United States v. W.R. Grace & Co. Kootenai Development, Corporation W.R. Grace & Co. Conn.

Libby, Montana, sits sixty-five miles south of the Canadian border. The seemingly rustic and picturesque environment of this area masks a troubling history — the community has been plagued with asbestos-related contamination. In 1999, the Environmental Protection Agency (“EPA”) was called in to address disturbing health reports due to asbestos-related contamination. We must decide whether, in responding to this threat, the EPA exceeded the bounds of its authority to conduct cleanup activities under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq. We hold that it did not.

Defendants W.R. Grace & Co., 1 Kootenai Development Corporation, and W.R. Grace & Co.-Conn. (collectively, “Grace”) do not dispute that they are financially obligated under CERCLA to assist with the cleanup of asbestos originating from their former mining and processing operations near Libby. 2 Instead, Grace contests the EPA’s characterization of the cleanup as a removal action rather than a remedial action under CERCLA. If the cleanup is a remedial action, which is often characterized as a permanent cleanup, then Grace argues that the EPA did not…

concurring:

I concur in the result that the majority reaches. The EPA’s activities in Libby, Montana, when taken as a whole, are properly classified as a removal action in response to the immediate threat posed by the large quantities of friable asbestos found in Libby. See, e.g., Majority Opinion at p. 1249 ante (noting that EPA toxicologist reported that Libby residents were being exposed to airborne asbestos in excess of OSHA’s permissible occupational exposure level). Accordingly, I would uphold the EPA’s classification of its Libby response action under Mead as opposed to Chevron deference. See United States v. Mead Carp., 533 U.S. 218, 234-35 , 121 S.Ct. 2164 , 150 L.Ed.2d 292 (2001).

Under CERCLA, the EPA can recover “all costs of removal or remedial action ... not inconsistent with the national contingency plan.” 42 U.S.C. § 9607 (a)(4)(A). The regulations set forth the national contingency plan standards governing the EPA’s selection of a response action. See 40 C.F.R. § 300.415 . In conducting judicial review, this court “shall uphold the President’s decision in selecting the response action unless the objecting party can demonstrate, on the administrative record, that…

429 F.3d 1224 UNITED STATES of America, Plaintiff-Appellee, v. W.R. GRACE & CO.; Kootenai Development, Corporation; W.R. Grace & Co. Conn., Defendants-Appellants. No. 03-35924. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 7, 2005. Filed December 1, 2005. Christopher Landau and John C. O'Quinn, Kirkland & Ellis LLP, Washington, D.C.; Kenneth W. Lund, Linnea Brown and Katheryn Jarvis Coggon, Holme Roberts & Owen LLP, Denver, CO, for the defendants-appellants. John T. Stahr, Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C.; James Freeman, Environment and Natural Resources Division, U.S. Department of Justice, Denver, CO, for the plaintiff-appellee. David L. Mulliken, Esq., Latham & Watkins, LLP, San Diego, CA, for the amicus. Appeal from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. No. CV-01-00072-DWM. Before: B. FLETCHER, McKEOWN, and BEA, Circuit Judges. McKEOWN, Circuit Judge: 1 Libby, Montana, sits sixty-five miles south of the Canadian border. The seemingly rustic and picturesque environment of this area masks a troubling…