ELR Citation: ELR 20245
No(s). 03-35924 (9th Cir. Dec 1, 2005)

The court upholds a lower court decision finding a company liable for response costs incurred at a former mining and processing operation in Libby, Montana, ordering the company to pay $54.53 million in reimbursement, including $11.32 million in indirect costs, and granting a declaratory judgment that the company would be liable for future cleanup costs. Given the sweeping language in the definition of "removal," the significant deference due to the U.S. Environmental Protection Agency's (EPA's) interpretation of this language, and the scope of the interim cleanup, EPA's cleanup of the asbestos-related contamination falls within the bounds of a removal action. In addition, EPA's cleanup was exempt from the Comprehensive Environmental Response, Compensation, and Recovery Act's general 12-month, $2 million cap for removal actions. The public health situation in Libby is extraordinary. Confronted with this information, EPA determined on the basis of its professional judgment, and in accord with its administrative interpretation of the scope of removal actions, that the situation warranted an immediate, aggressive response to abate the public health threat. Considering the widespread and pervasive asbestos contamination and the potential for further migration of asbestos fibers, EPA's decision to exceed the statutory cap was not arbitrary and capricious. The court, therefore, did not err in granting EPA over $54 million in reimbursement plus a declaratory judgment for future costs. Likewise, the accounting methods used to calculate EPA's indirect costs were proper.

[A related decision in this litigation is digested at 31 ELR 20559.]