analyzing whether the Government was prohibited from recovering certain costs where the defendant argued the EPA’s characterization of its response as a removal action was incorrect and where the parties agreed that the response did not meet the NCP’s requirements for remedial action
How later courts described this case
- analyzing whether the Government was prohibited from recovering certain costs where the defendant argued the EPA’s characterization of its response as a removal action was incorrect and where the parties agreed that the response did not meet the NCP’s requirements for remedial action
- concluding that “carefully documented reasoning” in EPA action memoranda can provide a basis for a removal action that is not arbitrary and capricious.
- holding district court did not err in determining action was removal even though it cost over $54 million and took several years to complete because there was an immediate risk to public health
- explaining that CERCLA removal actions include ʺpermanent solutions such as . . . soil or drum removalʺ (internal quotation marks omitted)
Written by the judges who cited it.
The opinion
BEA, Circuit Judge,
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 the decision was arbitrary and capricious or otherwise not in accordance with the law.” 42 U.S.C. § 9613 (j)(2).
The national contingency plan regulations governing removal action also provide that “[i]n determining the appropriate extent of action to be taken in response to a given release, the lead agency shall first review the removal site evaluation, any information produced through a remedial site evaluation ... and the current site conditions, to determine if removal action is appropriate.” 40 C.F.R. § 300.415 (a)(1). Thus, the regulations govern not only the EPA’s selection of a response action, but also its determination of the extent of a response action. Id. at 300 .415(a)(1). I would also review this latter determination under the arbitrary and capricious standard stated in 42 U.S.C. § 9613 (j)(2).
For example, the EPA’s decision to excavate the vermiculite tailings buried beneath the Libby Middle School track warrants scrutiny. According to a letter from the superintendent of Libby’s schools, the EPA had concluded that“[s]ince the asbestos ... detected is all at depth and, in some cases, covered by the track,” “there is not currently a risk of exposure.” Were this the only finding in the record, I would be hard pressed to see any rational connection between this finding and the decision to include the Middle School track in the EPA’s removal action.
However, the record contains additional findings that supply a rational reason for removing the track. Specifically, the EPA found that “there was some amount of the[asbestos-eontaining] material readily exposed in high traffic areas” and a risk of exposure to workers performing routine maintenance on the track. Soil samples from the Middle School track also show a 2-8% asbestos concentration at a depth of between 2 and 24 inches in the soil surrounding the track. ER 388. Thus, after a careful review of the record, I would conclude the EPA has made a reasoned decision in including the Libby Middle School in its removal action and would allow recovery of costs incurred there.
Thus, while I concur in the result of the majority’s decision, I write separately to emphasize that this court should stand ready to review separately the EPA’s actions at different locations at a removal *1252 site under the “arbitrary and capricious” standard stated in 42 U.S.C. § 9613 (j)(2).