Basic test of Superfund law
on May 5, 2006 at 11:04 am
This is another in a continuing series of reports on interesting new appeals to the Supreme Court. At this stage, the blog takes no position on whether the Court is likely to review the case. These reports appear when the blog obtains an electronic copy of the filings.
In 1970, after revelations of the notorious dumping of toxic chemical wastes into Love Canal in a section of Niagara Falls, N.Y., Congress passed a law to identify and clean up hazadous sites. The law is formally titled the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Although it is a sweeping law with a broad social impact, its key provisions are not often litigated. Lawyers for W.R. Grace Co., a major chemical and industrial materials company, have filed a new case asking the Supreme Court to clarify the limits that the law puts on the federal government’s options in cleaning up a waste dump, and then collecting the money it has spent from those responsible for the pollution.
The new case is W.R. Grace & Co., et al., v. U.S. (docket 05-1363). The government’s response is due May 30. The petition can be found here, and the Ninth Circuit Court ruling at issue is here.
The case involves the efforts of the Environmental Protection Agency to deal with asbestos contamination in Libby, a small mining town in northern Montana. The case, according to Grace, is about “one of the largest response actions in American history; so far, EPA has spent more than $120 million over six years…and no end is yet in sight.”
Since 1999, EPA has been engaging in what it considers an emergency cleanup in and around Libby.– a massive effort that seems to have been set off by a series of articles in a Seattle newspaper, the Post-Intelligencer, about health risks from exposure to asbestos. Labeling Libby “A Town Left to Die,” the articles accused government officials of passing the buck. The series appeared nine years after Grace had closed a Zonolite Mountain mine that produced vermiculite, a substance used in insulation, among other uses. It contains some asbestos.
The Ninth Circuit dramatically characterized what EPA is doing. “The EPA’s response action in Libby is no mere run-of-the-mill CERCLA cleanup. As the EPA itself recognizes, the Libby cleanup is a unique removal action of a size and cost not previously seen. But the situation in Libby was, and remains today, truly extraordinary.”
The legal question raised by Grace in the Supreme Court, however, is a simple one: is what EPA has been doing actually a “removal action,” or it is instead a “remedial action”? As the Ninth Circuit noted, the distinction is critical under CERCLA.
A removal action is an urgent response, undertaken when EPA decides that the health hazard is strong. Ordinariliy, such an action is limited to 12 months’ duration, and the cost is capped at $2 million, when the federal government undertakes the cleanup. The limits do not apply if EPA decides there is “an immediate risk to public health or welfare…or the environment” requiring an immediate response. A “remedial action,” by contrast, is considered a longer-term, permanent response, and is neither limited in scope nor duration. However, if the government wants to recover the costs of such a broader effort from the party causing the hazard, it must make a cost and cost-effectiveness analysis of the cleanup methods to be used.
In the Libby case, the Ninth Circuit accepted EPA’s argument that it is so far carrying out only a removal action. This is aimed, the agency has said, at removing “asbestos-contaminated materials from hundreds of homes, businesses, yards, gardens, school athletic fields, driveways, and mining plant facilities.” The Court said this was “a single response rather than a patchwork of discrete smaller actions.” It added that it would “refrain from slicing and dicing the EPA’s single, cohesive removal action into a myriad of fractured parts.” As of the time of the Court’s ruling, last December, EPA was studying what to do as a final remedy, when it deems the operation to have become a “remedial action.”
The Ninth Circuit found CERCLA’s definition of “removal” to be vague, but it said the law should be given “a liberal reading” because that would give EPA “greater flexibility to use ths tool for the protection of the public health.” Although skeptical of the legislative history behind the Act’s passage, the Court said that those who wrote it had an “overarching concern that aggressive action be taken to protect the public health….Considering the chaotic history behind CERCLA’s passage, we are particularly sensitive not to adopt a reading that would undermine its remedial purpose.” It said that “the need for immediate action permeates the EPA’s activities in Libby,” and accepted EPA’s view that there was a “widespread, looming threat” that airborne toxic particles would continue to threaten public health.
The Circuit Court did note that the law creates “a bifurcated scheme of removal and remedial actions,” and said there thus “must be outer limits to removal actions. But the EPA did not exceed these limits in this case. Nor need we delineate the outer parameters.” It went on to rule that EPA could recover from Grace costs in excess of the $2 million, 12-month cap on removal actions. “The tremendous scope of the removal in Libby made the $2 million ceiling unworkable. An entire town needed to be cleaned up…” not just an isolated site. Thus, it said, EPA could recover the full costs of its removal action.
In Grace’s appeal to the Supreme Court, the company and its subsidiaries argue that the Ninth Circuit had obliterated the distinction between removal and remedial responses. “The EPA has never made any effort to justify the cost or cost-effectiveness of any of its actions in Libby. To the contrary, the EPA has simply thrown money at the problem. The government obviously may spend its own money as it wishes, but cannot under CERCLA force private parties like petitioners to pay the bill unless it has complied with the relevant procedural safeguards….If this response can be characterized as a removal action as a matter of law, then any response action can be…and there is no more need (or incentive) for the EPA tto consider cost or cost-effectiveness…–after all, it is essentially spending someone else’s money.”
The petition contends that the rulng conflicts with interpretations of removal actions by the Eighth and Tenth Circuits. As those other Circuit Courts have recognized, Grace says, “CERCLA’s remedial safeguards are not technicalities, but vital checks on the awesome power to present someone else with the bill for an environmental cleanup…In the Ninth Circuit at least, the EPA now has carte blanche…”
