# Petition for Writ of Certiorari — W.R. Grace & Co. v. United States (No. 05-1363) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0701%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2006 ## Text Supreme Court, U.S. et? a 05136 3APR 27 2006 No. 05. OFFICE OF THE CLERK IN THE Supreme Court of the United States W.R. GRACE & CO., KOOTENAI DEVELOPMENT CORPORATION, AND W.R. GRACE & CO.-CONN., Petitioners, v. UNITED STATES OF AMERICA, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PETITION FOR WRIT OF CERTIORARI KATHERYN J. COGGON CHRISTOPHER LANDAU HOLME ROBERTS & Counsel of Record OWEN LLP JOHN C. O’QUINN 1700 Lincoln St. KIRKLAND & ELLIS LLP Denver, CO 80203 655 Fifteenth St., N.W. Washington, DC 20005 (202) 879-5000 April 27, 2006 ee eee ee es WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001 QUESTION PRESENTED Whether the Ninth Circuit erred, and created a conflict with the Eighth and Tenth Circuits, by holding that the _ Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended, 42 U.S.C. §§ 9601 et seq., requires a responsible party to pay the entire cost of an environmental response action of potentially unlimited scope and duration, undertaken without any consideration of cost or cost- effectiveness, without being allowed to challenge whether all or part of that action was necessary to contain or abate an immediate environmental hazard. ‘i CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 29.6 of the Rules of this Court, petitioners state as follows: Petitioner W.R. Grace & Co. is a publicly held Delaware corporation. It has no parent corporation, and no publicly held corporation owns 10% or more of its stock. Petitioner Kootenai Development Corporation is a subsidiary of W.R. Grace & Co., and no other publicly held corporation owns 10% or more of its stock. Petitioner W.R. Grace & Co.-Conn. is a subsidiary of W.R. Grace & Co., and no other publicly held corporation owns 10% or more of its stock. Petitioners W.R. Grace & Co., Kootenai Development Corporation, and W.R. Grace & Co.-Conn. filed for Chapter 11 bankruptcy in federal court in Delaware in April 2001, and that proceeding remains pending. TABLE OF CONTENTS Page REIT BODIES ocisicinccuarocs GeahihdinCcsvsconcouhseeah punsiseicacuestiabces 1 SE UNION siicisivissngeachiunin beds tassines niacdh eantvabuncnebobeaeitabe 3 aE OIE vacckcnsbtbenishbcdactnnasuh ub acaadagiabceiacsdchesiaahanstdaniices 3 PERTINENT STATUTORY PROVISIONS .....................2020005: 4 OR PRS SOMES GPU “ERE CII oss sicd sn icinss Gass sas ssdecarssnceccactchieucas 5 A. REA REESE AE PRN CUT Tae BR OM 5 B. CRIA RPI i sic: domavevroneunibnsmnag caraseuaiieae uekcanquiean tonsa. 10 REASON FOR GRANTING THE WRIT......................c:cceeeeeee 13 PRICING ee v TABLE OF AUTHORITIES Page(s) Cases Amland Properties Corp. v. Aluminum Co., 711 F. Supp. 784 (D.N.J. 1989) .............. ee 15, 18 Anderson v. Liberty Lobby, Inc., Be es ee kis baits ch dasin cds Caasancaobsactoianedunnsanss 6 Channel Master Satellite Sys., Inc. v. JFD Elecs. Corp., 748 F. Supp. 373 (E.D.N.C. 1990).....................04. 15 Chevron U.S.A., Inc. v. NRDC, Ee ar ee CR sekiskcakccscncstasconsmanieeesinsbsecelanans 27 Colorado v. Sunoco, Inc., 337 F.3d 1233 (10th Cir. 2003) ............... cesses 14 Conroy v. Antskoff, re Rak te URE is ccaoicssasuaiasaeccceas catcsnenepncaiatse 25 Exxon Corp. v. Hunt, ROG TS BR oii. cccvensvcsssenescon 14, 28 General Elec. Co. v. EPA, 860 F Sa 168 (D.C. Cir: ZOOSK). .....c ne ccccecccseescscsscns 13 In re Bell Petroleum Seruvs., Inc., 3 F.3d 889 (Sth Cir. 1993) ........................ 14, 21, 25 Kelley v. EPA, 15: F.30 1100 (D.C. Cir. 1904).............000 50. ccccssi.. 26 Minnesota v. Kalman W. Abrams Metals, Inc., 155 F.3d 1019 GE SANs RINE ccthscaasteecdnanaons 3, 15, 17, 18, 20, 25, 27 Morrison Enters. v. McShares, Inc., SOR F Sa FIZZ (IO Car. BOO) ......ceccccnreccecscscseces 14 New York v. Shore Realty Corp., BAO ete RI CE OE, BU novices sacacdcssnvendcseneses 14 vi Public Serv. Co. v. Gates Rubber Co., 175 F.3d 1177 (10th Cir. 1999) ....... 3, 15, 19, 20, 27 Sherwin-Williams Co. v. City of Hamtramck, 840 F. Supp. 470 (E.D. Mich. 1993) .....0..0...... 15, 24 United States v. Hardage, 982 F.2d 1436 (10th Cir. 1992) ...................ccceeeee 14 United States v. Mead Corp., WNe SFR A COIS Gascnknssésck tints esintnbaccechastpaaworanrcee 27 Versatile Metals, Inc. v. Union Corp., 693 F. Supp. 1563 (E.D. Pa. 1988) ...0.0000.000... 15, 20 Statutes and Rules 28 U.S.C. § 113(g)(2).............. Pa tie aver eporsoerarttes wnloy «icra 10 APRON WANED cocbccicscenccncuscecnsiens MinivuidecunaiabiaaibonanS 3 BAe Fe We iia ister ohdsev een uaduceucaschaadasaeass ater wteusts 1 APU BCE OORT oo 6 He a Mere, FD sas icv caches chs exsccseassisarpincvesciondiocia 4,21 A hr Ue I ss ca ink casunssssse aecdenepnaniecinccuacich 4, 13, 21 Ie Sens NEI OD ho soca in as ence ch nds jancdusemediadacatoniea ces 24 Ad ARMA, Be ROD cic iss sinsniicc nksuisecdaxacedscacnbnustoaaaasess 24 ATA sh ND boca cas posicnstnaacissnse dekssh vodcsusectinatactains 10 a 10, 26 Be AEE iy I iicncch ccohies cocordicvionscscncecasbasiaaabeonacaans 10 OP UO Cs i ee 22 SR ets EE nica scstsstcacpdcanapaieockundineadeuncncinbayateande 13, 22 Other Authorities 40 C.F.R. § 300.415(b)(2) «......cecceceeceeceeeees Si chaniicnea nieeiase 11 URE SI es 10 NO ote aii ae crac tarnish us ns csaacqraninsen tinea omanciin’ 6 INTRODUCTION This case presents the question whether the United States may conduct an environmental response action of unlimited scope and duration under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), as amended, 42 U.S.C. §§ 9601 et seq., without any consideration of cost or cost-effectiveness, and then present a responsible party with the bill. The Ninth Circuit answered that question in the affirmative, holding that once the Environmental Protection Agency (EPA) determines that any conditions at a particular site create a public health hazard, the EPA is free to spend money at will at that site, even on actions unnecessary to contain or abate the hazard, and then recover that money from a responsible party. That holding turns CERCLA upside down, and conflicts with —— from the Eighth and Tenth Circuits. CERCLA creates a fundamertal distinction between two types of environmental response actions: “removal” and “remedial” actions. “Removal” actions are short-term, temporary measures necessary to contain or abate an immediate environmental hazard. Precisely because such actions are limited in scope and duration, parties undertaking them need not conduct extensive analysis of cost or cost-effectiveness in order later to recover costs from a responsible party. Indeed, subject to certain narrow exceptions, CERCLA expressly caps “removal” actions undertaken by the United States at $2 million or 12 months. “Remedial” actions, on the other hand, are long-term measures undertaken as a _ permanent environmental remedy. They are not limited in either scope or duration, but a party undertaking such an action must conduct substantial analysis of cost and cost- effectiveness if it wishes later to recover costs from a responsible party: The statute thus establishes a system of checks-and-balances: removal actions are limited in scope and duration, and hence require only limited procedural safeguards, whereas remedial actions are 2 unlimited in scope and duration, and hence require substantial procedural safeguards. The ruling below obliterates this careful scheme. This case involves one of the largest response actions in American history: so far, the EPA has spent more than $120 million over six years to address asbestos contamination in and around Libby, Montana, and no end is yet in sight. There is no question that CERCLA authorizes the EPA to undertake such an action, and to present responsible parties like petitioners with the bill. But there is also no question that this massive response action is a long-term, permanent effort to restore Libby to its original condition. And therein lies the rub: 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. The EPA has attempted to circumvent those safeguards in this case by asserting that everything done in Libby has been part of a single “removal” action. And the statutory caps on removal actions do not apply, according to the EPA, because everything done in Libby has been part of an emergency “removal” action exempt from those caps. The Ninth Circuit held that this was all fine, and affirmed the grant of summary judgment in the EPA’s favor with respect to the entire Libby response action through the end of 2001. The upshot of that ruling is that, in the Ninth Circuit, the line between removal and remedial actions under CERCLA is effectively gone. If this response action can be characterized as a removal action as a matter of law, then any respense action can be characterized as a removal action as a matter of law, and there is no more need (ci incentive) for the EPA to consider cost or cost- effectiveness when conducting such an action—after all, it 3 is essentially spending someone else’s money. Not surprisingly, the ruling below cannot be reconciled with rulings by other courts of appeals denying cost recovery under CERCLA where a party undertook a remedial action without observing the requisite procedural safeguards, including consideration of cost and cost- effectiveness, required for such actions. See Public Serv. Co. v. Gates Rubber Co., 175 F.3d 1177, 1181-82 (10th Cir. 1999); Minnesota v. Kalman W. Abrams Metals, Inc., 155 F.3d 1019, 1024 (8th Cir. 1998). This Court should grant certiorari to resolve the conflict. Although CERCLA has been on the books for a generation, and has had sweeping effects on American business and society, this Court has never analyzed the statute’s fundamental removal/remedial distinction. The time is now ripe for this Court to do so, and to restore CERCLA’s formidable cost-recovery authority to its proper statutory bounds. OPINIONS BELOW The Ninth Circuit’s decision is reported at 429 F.3d 1224, and reprinted in the Appendix (App.) at 1-50a. The district court’s decision granting the United States summary judgment is reported at 280 F. Supp. 2d 1135, and reprinted at App. 51-70a. The district court’s decision awarding the United States all of the costs requested is reported at 280 F.Supp. 2d 1149, and reprinted at App. 71-138a. JURISDICTION The Ninth Circuit rendered its decision on December 1, 2005. App. la. On February 15, 2006, Justice Kennedy granted petitioner’s application to extend the time within which to file a petition for a writ of certiorari to April 28, 2006. This Court has jurisdiction under 28 U.S.C. § 1254(1). : 4 - PERTINENT STATUTORY PROVISIONS 42 U.S.C. § 9601(23) provides: The terms “remove” or “removal” means the cleanup or removal of released hazerdous substances from the environment, such actions as may be necessary [sic] taken in the event. of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release. The term includes, in addition, without being limited to, security fencing or other measures to limit access, provision of alternative water supphes, temporary evacuation and housing of threatened individuals not otherwise provided for, action taken under section 9604(b) of this title, and any emergency assistance which may be provided under the Disaster Relief and Emergency Assistance Act. 42 U.S.C. § 9601(24) provides: The terms “remedy” or “remedial action” means those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or 5 future public health or welfare or the environment. The term includes, but is not limited to, such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances and associated contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, onsite treatment or incineration, provision of alternative water supplies, and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment. The term includes the costs of permanent relocation of residents and businesses and community facilities where the President determines that, alone or in combination with other measures, such relocation is more cost-effective than and environmentally preferable to the transportation, storage, treatment, destruction, or secure disposition offsite of hazardous substances, or may otherwise be necessary to protect the public health or welfare; the term includes offsite transport and offsite storage, treatment, . destruction, or secure disposition of hazardous substances and _ associated contaminated materials. STATEMENT OF THE CASE A. Background This case arises out of long-ceased vermiculite mining activities near Libby, a town of some 3,000 residents in northwestern Montana. Vermiculite is not a hazardous 6 substance; it is a form of mica that, when heated, expands like popcorn, and has a variety of commercial uses (especially insulation). App. 140-4la.' Commercial vermiculite mining at Zonolite Mountain, located about ten miles outside of Libby, began in the 1920s; in 1939, the Zonolite Company was formed to mine and process vermiculite at the site. App. 5la. Petitioner W.R. Grace & Co. purchased the Zonolite Company in 1963. See id. Like most naturally-occurring minerals, raw vermiculite contains impurities—foreign substances not wanted in the final, commercial product. Among the impurities associated with vermiculite from Zonolite Mountain is tremolite, a naturally occurring mineral that is present in both asbestos and nonasbestos forms. App. 140a. Asbestos (in contrast to vermiculite) is a hazardous substance within the meaning of CERCLA. App. 72a (citing 42 U.S.C. §9601(14) and 40 C.F.R. § 302.4). Recause asbestos is an impurity in vermiculite, an important part of the production process in Libby focused on separating asbestos and other impurities from vermiculite. Grace ceased commercial mining operations in Libby in 1990. Id. Over the following years, Grace dismantled many of its mining facilities, and began selling off its properties in and around the town. During those years, federal, state, and local authorities were well aware of residual vermiculite in and around the town, but saw no 1 Because the district court granted summary judgment in the Government’s favor, a reviewing court must accept Grace’s evidence as true, and draw all reasonable inferences in Grace’s favor. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Accordingly, most of the facts set forth in this petition are drawn from Grace’s Statement of Genuine Issues of Material Fact filed in opposition to the Government's summary judgment motion. See App. 139-84a. reason for any action. In 1991, Grace sampled the air along the unpaved road leading from the abandoned mine to the Kootenai River for asbestos and submitted the results to local officials. None of the samples contained more than one-tenth the then-existing workplace-safety asbestos standard of 0.2 fibers per cubic centimeter. C.A. App. ER41-43. In 1992, the EPA investigated potential asbestos contamination along the road, and concluded that no action was necessary or appropriate. Jd. at ER44- 45; App. 9a. That same year, the Montana Department of Health and Environmental Sciences sampled soil at the former vermiculite export plant on the outskirts of town and concluded that “[nJeither sample showed significant asbestos contamination. Therefore the potential site will be considered no further action at this time.” C.A. App. ER1512-14. Everything changed, however, in late 1999. On November 18—nine years after Grace closed the mine— the Seattle Post-Intelligencer began running a series of articles on the health risks, from asbestos exposure in Libby. App. 14la. The series asserted that 192 people — had died from asbestos-related causes in Libby (“A Town Left to Die”), and charged government agencies with negligence (“While People are Dying, Government Agencies Pass Buck”). The series caused a political firestorm in Montana, and a public-relations crisis for the EPA. On November 22, 1999—within days of the Post- Intelligencer series—the EPA dispatched an investigative team to Libby. App. 14la. In February 2000, the Committee on Environment and Public Works of the United States Senate (which oversees the EPA and its budget, and of which United States Senator Max Baucus of Montana was then the Ranking Member), held a Field Hearing in Libby on “Federal, State, and Local Response to Public Health & Environmental Conditions From Asbestos Contamination in Libby, Montana.” Senator 8 Baucus presided over that hearing, and EPA officials testified that Libby would be handled as a top priority. The results of EPA’s testing in Libby showed that there was no problem with airborne asbestos at any location in the town or its vicinity. App. 142a. Based on these findings, EPA reassured the community that asbestos did not present a health risk to persons living, working, or visiting the town, and made no efforts to evacuate anyone. App. 141-42a. In March 2000, the EPA’s On-Scene Coordinator in Libby, Paul Peronard, stated that “[nJone of the results from the soil, insulation and dust samples point to obvious candidates for cleanup.” C.A. App. ER1579; see also C.A. App. ER183 (“Test results from area homes, soil, dust and air have thus far shown little for the community to be concerned about,” and “[i]f somebody were asking me right now, I would say the ambient air is no problem”) (Peronard); C.A. App. ER171 (“Sampling to date does not indicate an ambient air asbestos concentration problem.”). Despite these findings, in May 2000, the EPA issued an “Action Memorandum” memorializing its decision to carry out not only a removal action (as opposed to a remedial action), but an emergency removal action (exempt from CERCLA’s 12-month, $2 million caps on removal actions) at the site of the former screening plant on the banks of the Kootenai River some four miles outside of town. App. lla.2 At that point, the site was owned and occupied by a local couple, the Parkers, who 2 The Action Memorandum also memorialized EPA’s decision to undertake an emergency removal action at the former export plant site. On the same day the agency issued the Memorandum, however, the agency also issued a Unilateral Administrative Order directing Grace to carry out that cleanup. Grace did so at its own expense, and costs associated with thai project are not at issue here. App. lla n.8. 9 had purchased the property from Grace in the mid-1990s for $126,600. C.A. App. ER1515-17. The Action Memorandum allocated $4.025 million for remediation work at the site, which (without any analysis of cost or cost-effectiveaess) was spent on razing all the buildings, excavating the soil to a depth of up to 13 feet, replacing the soil, and improving the property (e.g., installing step pools for trout and rocks along the river to prevent erosion) dd. at ER896-97, ER1021-22, ER1187-88; ER1145-72 (photographs); App. 159-63a. In July 2001, EPA issued a_ second Action Memorandum memorializing its decision to expand the Libby response action from the screening plant site to two nearby uninhabited forest areas (the Flyway and the Bluffs), three local schools to which Grace had donated vermiculite and/or other mining materials for outdoor athletic facilities, two residential properties (Siefke and Brownlee) with small piles of vermiculite or contaminated mining equipment on site, and the unpaved road between the mine and the river. App. 12a. The second Action Memorandum raised the ceiling for spending on the Libby response action: to over $20 million, and extended the estimated duration of the project to 34 months. App. 12- 13a. Pursuant to the second Action Memorandum, EPA (without any analysis of cost or cost-effectiveness) dug up the soil in the forest at the Flyway and the Bluffs, replaced all the soil, ripped up the athletic facilities at the schools (even though the mining materials donated by Grace had long since been removed or paved over), and engaged in other remedial activities (including buying a new public announcement system and portable popcorn machine for the high school). App. 163-69a; see also C.A. App. ER642-51, ER897-912, ER1021-22, ER1653-57. In May 2002, EPA issued a third Action Memorandum memorializing its decision to expand the Libby removal action yet again, this time to residential properties and businesses throughout the Libby valley. App. 13a. The third Action Memorandum raised the ceiling for spending 10 on the Libby project to $55.6 million, and extended the estimated duration of the project by two to three years. Id. Pursuant to the third Action Memorandum, EPA (without any analysis of cost or cost-effectiveness) to this day is digging up residents’ yards throughout Libby, replacing the soil, and restoring the facilities. C.A. App. ER912-13. : Notwithstanding all of this activity, EPA made no attempt to place Libby on the National Priorities List (NPL), a list required by CERCLA, 42 U.S.C. § 9605(a)(8), which ranks the highest national priorities for environmental response actions (and in this period included over 1,000 sites). Inclusion on the NPL is a prerequisite for EPA to perform a remedial action (unlike a removal action). See 42 U.S.C. § 9605(a)(8); 40 C.F_R. § 300.425(b)(1). Ultimately, rather than itself trying to justify placing Libby on the NPL, the agency instead lobbied the Governor cf Montana to exercise her unreviewable one-time statutory power to designate a site within the State for placement on the NPL. C.A. App. ER 1643-45. The Governor agreed to do so, id. at ER1646-48, and Libby was listed on the NPL in October 2002, see National Priorities List for Uncontrolled Hazardous Waste Sites, 67 Fed. Reg. 65315 (Oct. 24, 2002)—well after the agency had issued the three Action Memoranda and incurred all of the costs at issue here. B. This Lawsuit On March 30, 2001, the United States filed this action against Grace and its subsidiaries Kootenai Development - Corporation and W.R. Grace & Co.-Conn (collectively Grace) under Section 107 of CERCLA, 42 U.S.C. § 9607, seeking recovery of response costs incurred in Libby through December 31, 2001. The complaint also sought a declaration of Grace’s liability under Section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2), that would be binding in future actions to recover further response costs or 11 damages incurred by the United States in connection with the Libby response action. Grace sought to defend itself on the grounds, among others, that the EPA had exceeded its statutory and regulatory authority (1) by characterizing the entire Libby response action as a removal action, thereby evading the procedural safeguards required for remedial actions, and (2) in any event, by characterizing the entire Libby response action as an “emergency,” and thereby exceeding the 12-month, $2 million caps on removal actions. In December 2002—before discovery was finished, and before Grace had even taken certain critical depositions—the district court (Molloy, C.J.) granted the United States summary judgment with respect to both these challenges. App. 5la-70a. (Because discovery had not yet concluded, the district court allowed Grace to file its Statement of Genuine Issues of Material Fact (App. 139-84a) after the court entered its summary judgment order; the court later stated on the record that none of the facts identified in the Statement altered its decision.) With respect to the agency’s characterization of the entire Libby response action as a removal action, the court asserted that “the record indicates that the EPA considered the mandatory factors set forth in 40 C.F.R. § 300.415(b)(2)” for a removal action, and that the agency could “proceed with a removal action after considering these factors.” App. 60a (emphasis added). The court emphasized that “/c/onsideration of the mandatory factors is what is required to conduct a removal action; because the EPA did so, its decision to conduct a removal action rather than a remedial action ... cannot be second- guessed by this Court.” Jd. (emphasis added). The court did not address Grace’s contention that the agency’s actual response actions in Libby went far beyond the permissible scope of a removal action. And with respect to the agency’s decision to exceed the statutory caps: on removal actions, the court asserted that the caps are “not inviolate,” and upheld EPA’s decision on the ground that 12 the agency had “considerfedj’ the factors necessary to exceed the caps. App. 61-62a (emphasis added). After the court granted the United States summary judgment on liability, the only issue left for trial was whether the United States was entitled to all the costs claimed—$54,527,081.11. The court held a three-day bench trial on that issue in early 2003, and, several months later, issued a decision granting the United States every penny requested. App. 7la-138a. Grace appealed, but a panel of the Ninth Circuit (McKeown, J., joined by Betty Fletcher and Bea, JJ.) affirmed. App. 1-50a. The panel “diverge[d] from the district court’s reasoning in some respects,” but “reach[ed] the same ultimate conclusion: The EPA’s cleanup in Libby was a removal action that was exempt from the temporal and monetary cap.” App. 4a. . The Ninth Circuit recognized that “Congress created a bifurcated scheme of removal and remedial actions and, accordingly, there must be outer limits to removal actions.” App. 42a. Nonetheless, the court held that the EPA was entitled to characterize the entire Libby response action as a “removal action” in light of “the documented evidence that, absent immediate action, the airborne toxic particles would continue to pose a substantial threat to public health.” Jd. The court made no effort to link the entire Libby response action to any such threat. Rather, the court declared, “[w]e refrain from slicing and dicing the EPA’s single, cohesive removal action into a myriad of fractured parts.” App. 23a. On the twin assumptions that (1) the EPA was entitled to undertake an emergency removal action to respond to an immediate public health hazard, and (2) the EPA was entitled to characterize the entire Libby response action as a “single, cohesive removal action,” the court not only held that the entire Libby response action was a removal, but that the entire Libby response action was an emergency removal exempt from the statute’s monetary and durational caps. Judge Bea concurred “to emphasize that this court should stand 13 ready to review separately the EPA’s actions at different locations at a removal site under the ‘arbitrary and capricious’ standard stated in 42 U.S.C. § 9613G)(2).” App. 50a. This petition follows. REASON FOR GRANTING THE WRIT The Ninth Circuit Erred, And Created A Circuit Conflict, By Holding That The Entire Libby Response Action Qualifies As An Emergency Removal Action That Exempts The EPA From Considering Cost Or Cost-Effectiveness. _The Ninth Circuit erred, and created a circuit conflict, by holding that CERCLA requires a responsible party to pay the entire cost of an environmental response action of potentially unlimited scope and duration, undertaken without any consideration of cost or cost-effectiveness, without being allowed to challenge whether all or part of that action was necessary to contain or abate an immediate environmental hazard. That approach turns CERCLA on its head by essentially obliterating the core statutory distinction between “removal” and “remedial” actions. Although, as the Ninth Circuit correctly observed, the statutory definitions of “removal” and “remedial” actions are hardly models of clarity, see App. 14a, 24a, there is broad consensus on the basic nature of the distinction. “Removal actions are short-term remedies, designed to cleanup, monitor, assess, and evaluate the release or threatened release of hazardous substances. Remedial actions are longer-term, more permanent remedies to ‘minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment.” General Elec. Co. v. EPA, 360 F.3d 188, 189 (D.C. Cir. 2004) (per curiam) (quoting 42 U.S.C. § 9601(24)); see also Exxon Corp. v. Hunt, 475 U.S. 355, 14 360 (1986) (distinguishing a “removal action,” 1.e., “a short-term cleanup” from a “remedial action,” i.e., “measures to achieve a ‘permanent remedy to a particular hazardous waste problem”); Colorado ov. Sunoco, Inc., 337 F.3d 1233, 1240 (10th Cir. 2003) (same); In re Bell Petroleum Serus., Inc., 3 F.3d 889, 894 (5th Cir. 1993) (same); New York v. Shore Realty Corp., 759 F.2d 1032, 1040 (2d Cir. 1985) (same); cf. 182 Cong. Rec. S14895-02, 14896 (daily ed. Oct. 3, 1986) (“Removals should remain interim and relatively short-term and inexpensive actions or urgent responses.”) (statement of Sen. Stafford, Chairman of the Senate Committee on Environment and Public Works). However difficult it may be to distinguish between removal and remedial actions at the margins, the distinction is “critical” to CERCLA’s statutory scheme and the EPA’s corresponding regulatory scheme, the National Contingency Plan (NCP). App. 8a; see also Jerry L. Anderson, Removal or Remedial? The Myth of CERCLA’s Two-Response System, 18 Colum. J. Envtl. L. 103, 103-04 (1993). As the Ninth Circuit explained below, “the requirements for remedial actions are much more detailed and onerous” than the requirements for removal] actions. App. 8a (quoting Morrison Enters. v. McShares, Inc., 302 F.3d 1127, 1136 (10th Cir. 2002)); see also Anderson, supra, at 104 (CERCLA and the NCP provide “dramatically different requirements for removal as opposed to remedial action”). In particular, “the EPA is required to consider costs when selecting remedial alternatives whereas ‘CERCLA contains no corresponding mandate for removal actions.” App. 8a (quoting United States v. Hardage, 982 F.2d 1436, 1443 (10th Cir. 1992)). This distinction makes sense: a party need not consider cost or cost-effectiveness before containing or abating an immediate environmental hazard, but must consider cost and cost-effectiveness before permanently remediating a contaminated site. “The division of responses into the two categories of 15 removal and remedial actions is designed to provide an opportunity for immediate action—a removal—without detailed review, where there is no time to safely conduct such review due to the exigencies of the situation.” Channel Master Satellite Sys., Inc. v. JFD Elecs. Corp., 748 F.Supp. 373, 385-86 (E.D.N.C. 1990); see also Anderson, supra, at 107-08. A party is free to remediate a site without following the procedural safeguards for remedial actions, but cannot thereafter recover those costs from another party. See, e.g., Gates Rubber, 175 F.3d at 1181-82; Kalman W. Abrams, 155 F.3d at 1024; Sherwin-Williams Co. v. City of Hamtramck, 840 F. Supp. 470, 475-76 (E.D. Mich. 1993); Channel Master, 748 F. Supp. at 384-87; Amland Properties Corp. v. Aluminum Co., 711 F.Supp. 784, 795-801 (D.N.J. 1989); Versatile Metals, Inc. v. Union Corp., 693 F. Supp. 1563, 1574-83 (E.D. Pa. 1988). The statute thus protects the public health without forcing liable parties to. pay for unnecessary or wasteful response costs. See, e.g., Anderson, supra at 107-08; see also id. at 103 (“Congress made the distinction between remedies and removals crucial to the recovery of cleanup costs.”) (emphasis added); App. 8a (removal/remedial distinction “vital to - those held liable”). In this case, however, the Ninth Circuit held that the EPA was entitled to characterize the entire Libby response action as a “removal” action, and to recover from Grace every penny of the more than $54 million spent through the end of 2001, because the agency was entitled to conclude that there was a public health hazard in Libby that justified such an action. See App. 4a, 14a-15a, 41a-42a. With all due respect, that is a non sequitur. Grace does not deny that CERCLA authorizes the EPA to conduct removal actions to contain or abate immediate environmental hazards, without any consideration of cost or cost-effectiveness, and thereafter recover the cost of such actions from responsible parties. But that is not what the EPA did here. Rather, from the 16 outset, the EPA set out to permanently remediate the entire site. Indeed, EPA’s On-Scene Coordinator, Paul Peronard, described the response action in Libby as a “permanent,” “long-term” solution. C.A. App. ER1183, ER1191; see also App. 160a. The problem here is that the EPA undertook these remedial actions without observing the procedural safeguards for such actions, and made no effort to distinguish these improper remedial actions from otherwise permissible removal actions. Through this lawsuit, the EPA is seeking to recover the cost of all its actions in Libby through the end of 2001, without regard to whether those actions involved the containment or abatement of an immediate environmental hazard or the permanent remediation of the site. All Grace is saying here, thus, is that it is entitled to its day in court to try to prove that particular elements of the $54 million requested by the Government (in Grace’s view, the vast majority of that amount) were not necessary to contain or abate an immediate environmental hazard, and thus not recoverable as “removal” costs under CERCLA. (As the Ninth Circuit noted, “[t]he EPA does not dispute that the [Libby] cleanup did not meet the National Contingency Plan’s procedural requirements for a remedial action.” App. 14a n.13.) So far, Grace has been denied that opportunity: the district court granted (and the Ninth Circuit affirmed) summary judgment against Grace with respect to liability for the entire Libby response action through the end of 2001. That result is particularly shocking because the EPA has never claimed, and neither the district court nor the Ninth Circuit ever determined, that all (or even a majority, or a substantial portion) of the costs at issue were necessary to contain or abate an immediate environmental hazard (as opposed to permanently remediate the site). It is no answer to say, as did the Ninth Circuit, that “the situation fin Libby] warranted an immediate, aggressive response to abate the public health threat.” 17 See App. 4a. Whether or not a removal action was warranted has nothing to do with whether or not a removal action was conducted. The Ninth Circuit brushed aside Grace’s core argument that the Libby response action went far beyond the permissible scope of a removal by declaring that it would not “slic[e] and dic[e] the EPA’s single, cohesive removal action into a myriad of fractured parts.” App. 23a; see also App. 1la n.9 (“[W]e analyze the EPA’s activities in Libby as a single response action rather than a patchwork of discrete smaller actions.”). That, of course, is the very question presented .in this case: whether the EPA’s Libby response action through the end of 2001 was a “single, cohesive removal action.” To the extent that the action was devoted in whole or in part to the permanent remediation of the site, as opposed to the containment or abatement of an immediate environmental hazard, it was not a “single, cohesive removal action” exempt from the procedural safeguards for remedial actions, such as consideration of cost and _ cost-effectiveness. In a_ nutshell, the Government is not entitled to collect costs for the entire Libby response action as a removal action if the entire | Libby response action was not a removal action. The Ninth Circuit’s “all or nothing” approach—under which an entire response action at a site may be characterized as a removal action if any portion of that action may be characterized as a removal action—is flatiy inconsistent with decisions from other circuits. Thus, in Kalman W. Abrams, the Eighth Circuit affirmed in part and reversed in part a grant of summary judgment in favor of the defendant in a CERCLA cost-recovery action. See 155 F.3d at 1023-26. At issue there was a site where hazardous lead contaminants had been spread over a property. See id. at 1021. The Minnesota Pollution Control Agency conducted a response action at the site; over the course of several years, it permanently remediated the property (digging up the contaminated soil and replacing it with new soil), but failed to observe 18 the procedural safeguards required for remedial action. See id. at 1021-22. When the State of Minnesota later filed a CERCLA cost recovery action against several responsible parties, the district court granted summary judgment in the defendants’ favor on the ground that the State could not recover remedial costs where it had not complied with remedial safeguards. See id. at 1023. The Eighth Circuit affirmed the district court’s decision that the State could not recover the cost of the entire response action. See id. at 1024. The Eighth Circuit readily acknowledged “the obvious fact that lead contaminants were ‘removed’ from the site.” Jd. But that did not mean, the court explained, that the procedural safeguards for remedial actions were categorically inapplicable. To the contrary, the court concluded, “we agree with the district court that the permanent nature of the McGuire site cleanup and the leisurely manner in which MPCA dealt with the problem make it appropriate to hold the agency to the NCP standards for remedial action.” Jd. (emphasis added); see also id. at 1026 (“[T}he kind of arbitrary and wasteful agency action that occurred in this case cannot be rewarded.”). But that conclusion, in turn, did not mean that the State was categorically barred from recovering any of its response costs. See id. at 1025 (“[W]e disagree with the district court’s decision to preclude the State from any cost recovery under CERCLA.”). Rather, the State was entitled to recover that portion of the costs that were incurred in compliance with the CERCLA scheme. See id. Thus, the Eighth Circuit remanded the case to give the defendants an opportunity to show that particular response costs were “unreasonable or unnecessary.” Id. at 1026. “The State may not recover response costs incurred in implementing appropriate remedial actions to the extent appellees prove on remand that they would have and could have accomplished the cleanup more cost effectively.” IJd.; see also Amland, 711 F. Supp. at 795-96 (granting summary judgment to CERCLA cost-recovery 19 defendant with respect to the “vast majority of the costs” incurred in a response action, which were “for the remedial actions undertaken in an attempt to remove [hazardous chemicals] from the [site].”). Similarly, in Gates Rubber, the Tenth Circuit affirmed a grant of summary iudement. in. favor of the defendant in a CERCLA cost-recovery action. See 175 F.3d at 1183-86. At issue there was a site contaminated with lead and polychlorinated biphenyls (PCBs). See id. at 1179. One of the responsible parties, the Public Service Company of Colorado (PSCO), undertook a comprehensive response action (which included excavating and _ transporting contaminated soil from the site) over more than four years, but failed to comply with the procedural requirements for remedial actions. See id. at 1179-80, 1184. PSCO later sought to recover a proportionate share of the response cost from other responsible parties, but the district court granted summary judgment in favor of the defendants on the ground that “as a matter of law PSCO’s cleanup was a remedial action” that did not comply with the procedural requirements for such actions. Id. at 1180. The Tenth Circuit agreed with the district court, and affirmed the judgment denying any cost recovery. As the court explained, “PSCO intended to effect a permanent remedy” through the multi-year response action. Id. at 1184. Although, in the course of this comprehensive response action, PSCO undertook discrete actions that, standing alone, might qualify as removal actions, that did not alter the fact that they were part of a broader remedial action subject to CERCLA’s heightened procedural safeguards. See id. (“Although PSCO ‘removed’ and ‘excavated’ soils and buried storage drums, neither of those acts alone nor their particular labeling transforms the cleanup into a removal action.”). Thus, the Tenth Circuit concluded that “[t]he district court did not err in concluding PSCO undertook a remedial action which triggered the more detailed requirements of the 20 NCP.” dd. (citing Kalman W. Abrams, 155 F.3d at 1024); see also Versatile Metals, 693 F. Supp. at 1578 (granting judgment in favor of CERCLA cost-recovery defendants based on evidence presented at a trial “that although some immediate actions were taken at the time the contamination was discovered, [the CERCLA cost- recovery plaintiffs’) response action was remedial.”). The Ninth Circuit’s decision below, affirming the grant of summary judgment in favor of the plaintiff in a CERCLA cost-recovery action, cannot possibly be squared with these precedents. As noted above, the Ninth Circuit characterized the entire Libby response action though the end of 2001 as a removal action, even though Grace vigorously disputed whether the bulk of the action was necessary to contain or abate an immediate environmental hazard, see App. 139-84a, and the EPA itself neither could nor did attempt to justify all of its actions in Libby under that standard. In contrast, the Eighth Circuit in Kalman W. Abrams remanded for a determination of which response costs were indeed necessary, and the Tenth Circuit in Gates Rubber simply denied any cost recovery altogether. Both Kalman W. Abrams and Gates Rubber rejected the argument that an entire response action at a particular site must (or even may) be characterized as a removal just because, among other things, hazardous substances were contained, abated, or removed. See 175 F.3d at 1184; 155 F.3d at 1024. Thus, the cost-recovery defendants in both Kalman W. Abrams and Gates Rubber—in sharp contrast to Grace—had their day in court to argue that at least portions of a disputed CERCLA response action were remedial in nature but lacked the remedial safeguards. The Ninth Circuit’s “all or nothing” approach not only conflicts with Kalman W. Abrams and Gates Rubber, but renders the fundamental removal/remedial distinction a dead letter. After all, the predicate for any response action (whether removal or remedial) under CERCLA is the release of “hazardous substances” into’ the 21 environment. 42 U.S.C. § 9601(23) (statutory definition of “removal” actions); id. § 9601(24) (statutory definition of “remedial” actions). By definition, then, any CERCLA response action will involve an attempt to address an environmental hazard. Accordingly, if the existence of a such a hazard. were the touchstone for distinguishing between removal and remedial actions, the distinction would be meaningless. Indeed, almost every remedial action could be said to encompass a removal action, because the permanent remediation of a site typically involves the removal of hazardous substances. Under the Ninth Circuit's decision below, a party responding to environmental contamination can immediately launch a remedial action without any consideration of cost or cost- effectiveness, and later collect all of the costs of that action, by simply pointing to the part of the action that contained or abated the release of a hazardous substance—which is precisely what the EPA has done here. Needless to say, the statutory and regulatory requirements for remedial actions would be wholly meaningless if any response action can be characterized as a removal action. In other words, the only way that a statutory and regulatory regime based on the removal/remedial distinction makes sense is that a removal action must be limited in scope to containing or abating the exigency that gave rise to that action in the first place. If, as the decision below allows, an exigency justifying a removal action is an “open sesame” to conduct a full-blown remedial action without observing the remedial safeguards, the removal/remedial distinction is gone. A responding party has no incentive to constrain its spending (and indeed, a.perverse incentive to maximize its spending) if it knows that it can conduct a multi-year, multi-million dollar cleanup on someone else’s tab. See, e.g., Bell, 3 F.8d at 907 (CERCLA does not give EPA “unrestrained spending discretion,” and “such unbridled discretion removes any restraint upon the conduct of the 22 EPA in exercising its awesome powers; if the EPA knows there are no economic consequences to it, its decisions and conduct are likely to be less responsible”); cf. Stephen G. Breyer, Breaking the Vicious Circle 11-19 (1993) (noting danger that unconstrained regulators will overregulate against risk). That is why there must be a nexus between the exigency justifying a removal action and the scope of that action, and sober judicial assessment of that nexus— particularly because CERCLA gives the EPA broad discretion to select the response in the first instance, see 42 U.S.C. § 9613G)(2), and bars pre-enforcement judicial review of that response, see id. § 9613(h). Because the district court here granted summary judgment in the Government's favor across the board, and the Ninth Circuit affirmed that decision, Grace has been denied any such assessment. It is no answer to say, as did the Ninth Circuit, that the situation in Libby is “truly extraordinary.” App. 4a, 15a. What that means, apparently, is that the Ninth Circuit concluded (notwithstanding the summary judgment posture of the case) that the public health -hazard presented in Libby was acute. See id. at 4a (“[T]he population of Libby ... faces ongoing, pervasive exposure to asbestos particles being released through documented exposure pathways. We cannot escape the fact that people are sick and dying as a result of this continuing exposure.”). But that means at most that the Ninth Circuit believes that it would be hard for Grace to show that all aspects of the EPA’s response action in Libby through the end of 2001 were not necessary to contain or abate such an immediate environmental hazard. It provides no basis whatsoever for denying Grace its day in court to attempt to make that showing in the first place.% 3 Judge Bea’s concurrence is especially perplexing on this score. Judge Bea appeared to agree with Grace that particular 23 In opposing the Government’s motion for summary judgment, Grace identified numerous aspects of the Libby response action that were mot geared to containing or abating an immediate environmental hazard. App. 139- 84a. At the most basic level, the Libby response action focused from the outset on excavating and replacing the soil. Given that asbestos does not pose a public health risk unless it is airborne, App. 155a, it is fanciful to suggest that excavating and replacing the soil at a depth of anywhere from five to thirteen feet could represent a short-term or interim (rather than permanent) solution to an asbestos contamination problem. The EPA dug up concrete and asphalt to get to the soil underneath, and then after replacing the soil, remediated the site by, among other things, planting new trees, installing new rocks along the riverfront to prevent erosion, and building new step pools for trout. App. 159-65a. By no stretch of the imagination can all of these actions be characterized as steps necessary to contain or abate an immediate environmental hazard. Notably, neither the EPA, the district court, nor the Ninth Circuit ever contended otherwise. Rather, as noted above, the EPA, the district court, and the Ninth Circuit all characterized the entire Libby response action as a permissible removal because it components of the Libby response action could be challenged, but rejected a particular example discussed in Grace’s Ninth Circuit brief on the ground that “the record contains additional findings that supply a rational reason” to place that example on the removal side of the removal/remedial distinction. App. 50a. Given the summary judgment posture of the case, however, the question is not whether the EPA’s position was “rational,” but whether the EPA’s position was correct as a matter of law. Again, Grace never has had its day in court to show that all the EPA’s actions in Libby through the end of 2001 were not necessary to contain or abate an immediate environmental hazard. 24 contained a removal (as well as a frankly remedial) component—precisely the opposite of the way the Eighth and Tenth Circuits approached the issue. The EPA, moreover, has been taking its time on the Libby response action; right now, that action has been underway for more than six years, and no end is in sight. Although the Ninth Circuit downplayed the duration of the action by blaming the weather, see App. 36a-37a (citing Sherwin-Williams with a “but see”), that assertion misses the point that the EPA has had ample time to evaluate the cost and cost-effectiveness of its actions in Libby but steadfastly has refused to do so, see App. 163- 68a. If excavating and replacing the soil to a depth of six feet in uninhabited forest areas was not necessary to contain or abate an immediate hazard, see App. 163-65a, then the EPA should have analyzed cost and cost- effectiveness before excavating and replacing the soil to a depth cf six feet in uninhabited forest areas—which might have dissuaded the EPA from undertaking that particular action in the first place. That is the way CERCLA is supposed to work. Indeed, given that CERCLA expressly caps removal actions by the EPA at $2 million or 12 months, see 42 U.S.C. § 9604(c)(1), it is nothing short of remarkable that the Ninth Circuit held that the EPA was entitled to summary judgment with respect to its characterization of the entire Libby response action through the end of 2001 as a removal action. Although the statutory caps are not inviolate, and may be exceeded (as allegedly relevant here) if “immediately required to prevent, limit, or mitigate an emergency,” 42 U.S.C. § 9604(c)(1)(A), the caps at the very least underscore the limited and interim nature of removal actions. Certainly, the fact that the EPA is seeking through this lawsuit to recover more than $54 million in costs for response actions taken over more than two years on its face tends strongly to confirm Grace’s position that something more than a removal action is afoot. 25 The Ninth Circuit tried to justify its contrary conclusion by insisting that “the purpose of the statute ... points towards a liberal reading of ‘removal’ in order to effectuate CERCLA’s underlying purpose of protecting and preserving public health and the environment by facilitating the expeditious and efficient cleanup of hazardous waste sites.” App. 28a (internal quotation and brackets omitted); see also id. (“{A] liberal reading provides the EPA with greater flexibility to use this tool for the protection of the public health.”). That approach, of course, begs the fundamental question whether all of the EPA’s actions in Libby through the end of 2001 (as to which the Ninth Circuit affirmed the grant of summary judgment in the EPA’s favor) were in fact necessary to contain or abate an immediate environmental hazard. Allowing Grace its day in court to challenge specific actions would not undermine CERCLA’s purpose of protecting public health and the environment; rather, it would only further CERCLA’s purpose of preventing arbitrary and capricious agency action. “Congress has not provided that private parties must pay for the consequences of arbitrary and capricious agency action.” Kalman W. Abrams, 155 F.3d at 1024 (quoting Bell, 3 F.3d at 905). This distinct purpose is reflected in the statutory provisions mandating procedural safeguards (including consideration of cost and cost-effectiveness) for remedial actions; to declare (as did the Ninth Circuit) that CERCLA’s “remedial purpose” mandates a_ broad interpretation of “removal actions,” App. 41a, is simply to read these latter provisions out of the statute. Nor does the legislative history support the Ninth Circuit’s approach. Indeed, the decision below provides a classic example of the adage that legislative history can be used in a manner akin to “entering a crowded cocktail party and looking over the heads of the guests for one’s friends.” Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring). The Ninth Circuit “[took] away from the legislative history ... the drafters’ overarching 26 concern that aggressive action be taken to protect the public health.” App. 29a. By focusing on that “overarching concern,” the Ninth Circuit wholly ignored a more specific concern applicable here: a concern that the EPA not use its removal authority “to circumvent the more rigorous and explicit requirements regarding public participation and health standards” for remedial actions. 132 Cong. Rec. at 14896 (statement of Sen. Stafford, Chairman of the Committee on Environment and Public Works). . Similarly misguided is. the Ninth Circuit’s suggestion that some form of judicial deference (the Ninth Circuit was not sure which) was due the EPA’s characterization of its actions in Libby as removal actions. See App. 19a- 24a. That suggestion defies fundamental principles of administrative law. This lawsuit is a cost-recovery action brought by the EPA. Congress delegated to the courts, not the agency, the authority to determine in the first instance whether such cost recovery is warranted. See 42 U.S.C. § 9607. Thus, there is no basis for courts to defer to the agency’s characterization of particular actions as removal (as opposed to remedial) actions, just as there is no basis for. courts to defer to a _ prosecutor’s characterization of particular actions as criminal. See, e.g., Kelley v. EPA, 15 F.3d 1100, 1105-08 (D.C. Cir. 1994) (Silberman, J.). With respect to the characterization of the particular response actions undertaken by the EPA in Libby, there is nothing to which a court can defer other than the agency’s briefs. In any event, the Ninth Circuit’s discussion of the deference issue only underscores the need for this Court’s review. The Ninth Circuit frankly admitted that it could not reconcile this Court's precedents in this area, particularly on the degree of judicial deference due to informal agency adjudications. See App. 19a (“Our decisions understandably have been conflicted as to whether Chevron deference only applies upon formal rulemaking and whether lesser deference applies in other 27 situations.”) (citing Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984); United States v. Mead Corp., 533 U.S. 218 (2001)). As the Ninth Circuit observed, with some understatement, “[fljollowing Mead, the continuum of agency deference has been fraught with ambiguity.” App. 19a; see also id. at 20a (“Mead ... further obscured the already murky administrative law surrounding Chevron.”) (internal quotation omitted). Ironically, Grace agrees with the Ninth Circuit’s ultimate conclusion that resolution of the deference issue should not affect the result in this case, see App. 2la, but for the opposite reason: while the Ninth Circuit concluded that the entire Libby action may be characterized as a removal action regardless of the standard of deference, Grace believes that the entire Libby action may not be characterized as a removal action regardless of the standard of deference. Given the Ninth Circuit’s open confusion on the deference issue, though, at the very least that issue confirms the need for this Court’s review. In the final analysis, the Ninth Circuit has seriously distorted an important federal statute. As the Eighth and Tenth Circuits have recognized, 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. See Gates Rubber, 175 F.3d at 1181-82; Kalman W. Abrams, 155 F.3d at 1024. In the Ninth Circuit, however, a party can now avoid those checks by simply identifying some removal component within a remedial action, and then shoehorning the entire response action at the site into the removal category. The upshot is that, in the Ninth Circuit at least, the EPA now has carte blanche under CERCLA to use its removal authority not only to contain or abate an immediate environmental hazard, but also to remediate a site without complying with the procedural requirements for remedial actions. By underscoring that—for better or worse—the removal/remedial distinction underlying CERCLA is 28 “critical,” App. 8a, the Ninth Circuit also underscored that this distinction should be clear. If any lesson may be drawn from the decision below, it is that the distinction is not clear. Although this Court has alluded to the distinction in passing, see Exxon, 475 U.S. at 360, it has never analyzed it. Given CERCLA’s signal role in American environmental law, and the billions of dollars expended under that statute, Grace respectfully submits that the decision below is worthy of this Court’s review. The bottom line here is that if EPA is allowed to characterize the entire Libby response action (which to date has cost over $120 million and lasted over six years) not only as a removal action, but as an “emergency” . removal exempt from the statutory caps, then CERCLA’s substantive and procedural protections are a dead letter, and the agency has unfettered power to spend other people’s money. That result would be a defeat not only for sound environmental policy but also for the rule of law. CONCLUSION For the foregoing reasons, this Court should grant the petition for writ of certiorari. Respectfully submitted, KATHERYN J. COGGON CHRISTOPHER LANDAU HOLME ROBERTS & Counsel of Record OWEN LLP JOHN C. O’QUINN 1700 Lincoln St. KIRKLAND & ELLIS LLP Denver, CO 80203 655 Fifteenth St., N.W. Washington, DC 20005 (202) 879-5000 APPENDIX TABLE OF CONTENTS Page Ninth Circuit Opinion, at a TN i la District Court Opinion on Liability, enemies TF; Ss id eee ce eae 5la District Court Opinion on Costs, PT, Be: MONO cack ecikssce patented Vacniucieenacneainn Tla Defendants’ Revised Genuine Issues Of Material Fact In Response To Government’s Motion For Summary Judgment, ROUEN TE DI oso ckcd coc Resse ceases 139a FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 03-35924 v. D.C. No. W.R. GRACE & CO.; KOOTENAI CV-01-00072-DWM DEVELOPMENT, CORPORATION; W.R. OPINION GRACE & Co. CONN., Defendants-Appellants. Appeal! from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding Argued and Submitted February 7, 2005—Seattle, Washington Filed December 1, 2005 Before: Betty B. Fletcher, M. Margaret McKeown, and Carlos T. Bea, Circuit Judges. Opinion by Judge McKeown; Concurrence by Judge Bea 2a COUNSEL Christopher Landau and John C. O’Quinn, Kirkland & Ellis LLP, Washington, D.C.; Kenneth W. Lund, Linnea Sruwn anu’ Nacheryu Jarvis Coggon, Holme Noberts & Owen LLP, Denver, Colorado, 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, Colorado, for the plaintiff-appellee. David L. Mulliken, Esq., Latham & Watkins, LLP, San Diego, California, for the amicus. OPINION McKEOWN, Circuit Judge: 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 cailed 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.,! Kootenai Development Corporation, and W.R. Grace & Co.-Conn. (collectively, “Grace”) do not dispute that they are financially obligated ! Although the case caption has remained consistent, we note that the district court’s order states that the parties stipulated to the dismissal of W.R. Grace. & Co., a Delaware corporation that was incorporated in 1998 and is the sole shareholder of W.R. Grace & Co.-Conn. United States v. W.R. Grace & Co.-Conn., 280 F. Supp. 2d 1135, 1139 n.1 (D. Mont. 2002) (“Grace I’). 3a under CERCLA to assist with the cleanup of asbestos originating from their former mining and processing operations near Libby.? Instead, Grace contests the EPA’s characterization of the cleanup as a removal action rather than a remedial action under CERCLA. Ifthe cleanup is a remedial action, which is often characterized as a permanent cleanup, then Grace argues that the EPA did not fulfill the regulatory requirements for remedial actions. For example, a remedial action requires certain analysis of the costs and effectiveness of the remediation and also requires inclusion on the National Priority List. See 40 C.F.R. §§ 300.425(b)(1), 300.430(e)(7). In contrast, the regulatory requirements for removal actions, which provide the EPA with substantial flexibility to tailor prompt and effective responses to immediate threats to human health and the environment, are considerably relaxed. Grace argues that the EPA circumvented the regulatory safeguards by conducting a remedial action under the guise of a removal, thereby giving the EPA free rein to conduct what Grace styles as “the quintessential remedial action” under the less-restrictive requirements applied to removals. Grace presents this as a legal question: Is the EPA’s characterization of its activities in Libby as a removal action correct as a matter of law? Grace further contends that even if the action is appropriately classified as a removal action, the district court erred in exempting the action from CERCLA’s general 12-month, $2 million cap for removal actions and in granting the EPA over $54 million in reimbursement plus a declaratory judgment for future costs. Finally, Grace 2 In February 2005, the United States unsealed a criminal indictment charging Grace and various of its employees with offenses relating to knowingly exposing miners and Libby residents to asbestos. See Charges Issued Over Asbestos at a Mine, N.Y. Times, Feb. 8, 2005, at A16. This pending indictment does not affect these proceedings. 4a disputes the accounting methods used to calculate the EPA’s indirect costs. The situation confronting the EPA in Libby is truly extraordinary. ‘This cleanup site is not a remote, abandoned mine. Rather, the population of Libby and nearby communities, which the EPA estimates at about 12,000, faces ongoing, pervasive exposure to asbestos particles being released through documented exposure pathways. We cannot escape the fact that people are sick and dying as a result of this continuing exposure. Confronted with this information, the 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. Although we diverge from the district court’s reasoning in some respects, we reach the same ultimate conclusion: The EPA’s cleanup in Libby was a removal action that was exempt from the temporal and monetary cap. In light of the EPA’s expertise in this area, we owe considerable deference, albeit not necessarily full Chevron deference, to its characterization of the cleanup activities as a removal action. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984). We therefore affirm the judgment of the district court. Background The outcome of this case is controlled by our interpretation of key provisions of CERCLA, a comprehensive statutory scheme to respond to environmental threats, obtain compensation from those responsible for the polluting activities, and assign liability to responsible parties. See Pub. L. No. 96-510, 94 Stat. 2767 (1980). Before applying CERCLA to the case at hand, we begin with a brief review of this statute as well as the background on the hazards afflicting Libby. 5a I. CERCLA A key component of CERCLA was the establishment of a trust fund, commonly known as “Superfund,” for use when responding to the release or threat of release of hazardous substances into the environment. See CERCLA, Subtitle B— Establishment of Hazardous Substance Response Trust Fund § 221, 94 Stat. at 2801-02; see also Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613 (1986). Today, Superfund expenditures are directed by the provisions of CERCLA and the National Oil and Hazardous Substances Pollution Contingency Plan (“National Contingency Plan”), 40 C.F.R. pt. 300.3 CERCLA and the National Contingency Plan divide response actions into two broad categories: removal actions and remedial actions. See 42 U.S.C. § 9601(25). Removal actions‘ are typically described as time-sensitive responses 3 The National Contingency Plan “specifies procedures for preparing and responding to contaminations and was promulgated by the [EPA] pursuant to CERCLA.” Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. ___, 125 S. Ct. 577, 580 n.2 (2004); see also 42 U.S.C. § 9605. Last revised in 1994, see 59 Fed. Reg. 47,384 (Sept. 15, 1994), the National Contingency Plan has undergone several rounds of revisions since its initial publication. 4 Although “removal action” is not itself defined in CERCLA, “remove” and “removal” are defined. In light of the central importance of the definition to this case, it is worth citing the rather cumbersome definition in its entirety: The terms “remove” or “removal” means the cleanup or removal of released hazardous substances from the environment, such actions as may be necessary [sic] taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the 6a to public health threats for which the EPA is granted considerable leeway in structuring the cleanup. See, e.g., Minnesota v. Kalman W. Abrams Metals, Inc., 155 F.3d 1019, 1024 (8th Cir. 1998) (describing “removal actions” as “those taken to counter imminent and substantial threats to public health and welfare”). Superfund-financed removal actions genera!ly are required to “be terminated after $2 million has been obligated for the action or 12 months have elapsed from the date removal activities begin on-site.” 40 C.F.R. § 300.415(b)(5). These limitations are not, however, inviolate. The EPA® may exceed this cap if it determines one of two exemptions applies: There is an immediate risk to public health or welfare of the United States or the environment; continued response actions are immediately required to prevent, limit, or mitigate an emergency; and such assistance will not otherwise be provided on a timely basis; or Continued response action is otherwise appropriate and consistent with the remedial action to be taken. 40 C.F.R. § 300.415(b)(5); see also 42 U.S.C. § 9604(c)(1). environment, which may otherwise result from a release or threat of release. The term includes, in addition, without being limited to, security fencing or other measures to limit access, provision of alternative water supplies, temporary evacuation and housing of threatened individuals not otherwise provided for, action taken under section 9604(b) of this title, and any emergency assistance which may be provided under the Disaster Relief and Emergency Assistance Act. 42 U.S.C. § 9601(23). 5 In Executive Orders 12,580 and 12,777, the President delegated most functions and responsibilities to the EPA that were vested in him by CERCLA. See 40 C.F.R. § 300.100. 7a Remedial actions,® on the other hand, are often described as permanent remedies to threats for which an urgent response is not warranted. See, e.g., Pub. Serv. Co. of Colo. v. Gates Rubber Co., 175 F.3d 1177, 1182 (10th Cir. 1999) (“In broad contrast, a remedial action seeks to effect a 6 As with “removal,” the definition of “remedial action” has a maze-like structure: The terms “remedy” or “remedial action” means those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment. The term includes, but is not limited to, such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances and associated contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, onsite treatment or incineration, provision of alternative water supplies, and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment. The term includes the costs of permanent relocation of residents and businesses and community facilities where the President determines that, alone or in combination with other measures, such relocation is more cost- effective than and environmentally preferable to the transportation, storage, treatment, destruction, or secure disposition offsite of hazardous substances, or may otherwise be necessary to protect the public health or welfare; the term includes offsite transport and offsite storage, treatment, destruction, or secure disposition of hazardous substances and associated contaminated materials. 42 U.S.C. § 9601(24). 8a permanent remedy to the release of hazardous substances when there is no immediate threat to the public health.”). The distinction between removal and remedial actions is critical under CERCLA because “[b}oth types of actions have substantial requirements, but the requirements for remedial actions are much more detailed and onerous.” Morrison Enters. v. McShares, Inc., 302 F.3d 1127, 1136 (10th Cir. 2002). For example, remedial actions are only eligible for Superfund financing when the site is listed on the National Priorities List.? See 40 C.F.R. § 300.425(b)(1). Further, the _EPA is required to consider costs when selecting remedial alternatives whereas “CERCLA contains no corresponding mandate for removal actions.” United States v. Hardage, 982 F.2d 1436, 1443 (10th Cir. 1992); see also 40 C.F.R. § 300.430 (listing requirements for a selection of remedy including consideration of effectiveness, permanence, and cost). Because CERCLA provides that responsible parties shall be liable for “all costs of removal or remedial action incurred by the United States Government ... not inconsistent with the national contingency plan,” this distinction is vital to those held liable. 42 U.S.C. § 9607(a)(4). II. HISTORY OF THE EPA’sS CLEANUP ACTIVITIES IN LIBBY The roots of this case stretch back nearly a century to the beginning of mining operations in the vicinity of Libby. It was not until the late 1990s, however, that the extent of the problem came to light fully, leading to the EPA’s cleanup action. A. ASBESTOS CONTAMINATION IN LIBBY From the 1920s until 1990,.Grace and its predecessors mined and processed vermiculite—a mineral containing a 7 The National Priorities List is “the list, compiled by EPA pursuant to CERCLA section 105, of uncontrolled hazardous substance releases in the United States that are priorities for long-term remedial evaluation and response.” 40 C.F.R. § 300.5 9a type of asbestos called tremolite—at a mine approximately seven miles northeast of Libby. See Grace I at 1138-41 (describing factual background in an order granting the EPA’s motion for summary judgment). Processed ore was trucked to screening plants and expansion/export plants from which the materials were distributed nationwide. Vermiculite was also available for employees to take home for their personal use, and Grace donated vermiculite to the local schools. . Although Grace did not cease mining and processing operations in Libby until 1990, state and federal agencies conducted studies on the health effects of the mining operations as early as the 1940s. These efforts were, however, focused on workplace exposure rather than contamination in the greater Libby community. For example, in the 1940s and 1950s, the Montana State Board of Health issued several industrial hygiene studies to determine whether the mine’s operations were detrimental to the employees’ health. In 1992, the EPA issued a written determination on the applicability of the National Emissions Standards for Hazardous Air Pollutants to a road on the mine property. However, no CERCLA activities were performed in Libby prior to the EPA’s commencement of an investigation in 1999 that led to the current cleanup. : B. THE EPA’S INVOLVEMENT IN LIBBY After beginning its investigation in November 1999, the EPA issued a Sampling and Quality Assurance Project Plan in December, followed by a more comprehensive revised plan in January 2000. The plan “address[ed] questions and concerns raised by citizens of Libby regarding possible ongoing exposures to asbestos fibers as a result of historical mining, processing and exportation of asbestos-containing vermiculite.” The EPA’s immediate efforts were directed toward (1) obtaining information on airborne asbestos levels in order to judge whether a time-critical intervention was needed to protect public health, and (2) obtaining data on friable asbestos levels in potentially contaminated materials 10a around Libby. The EPA stated that “[t}he first decision to be made is whether or not time-critical intervention is needed to protect public health.” In his testimony before the Senate’s Environment and Public Works Committee in February 2000, the EPA’s regional administrator attested that the initial investigation confirmed two things: (1) “a large number of current and historic cases of asbestos related diseases centered around Libby,” including “33 incidents of apparently non- occupational exposures”; and (2) a “high likelihood that significant amounts of asbestos contaminated vermiculite still remain in and around Libby.” Vermiculite from the mine’s waste piles was “commonly used by local residents in their yards and gardens as a soil conditioner.” It was also used to create running tracks and baseball fields for nearby schools. The residents were particularly concerned because children regularly played in and around piles of vermiculite. These findings compelled the EPA to undertake more expansive testing. To put it mildly, subsequent testing showed asbestos contamination to be pervasive. Because asbestos is generally only harmful if inhaled or ingested, the mere presence of asbestos does not necessarily constitute an immediate threat. But the situation in Libby did not present this benign scenario. Instead, the EPA documented “complete human exposure pathways’ through which asbestos particles were becoming airborne as a result of normal human activities, such as foot traffic and vacuuming, and natural forces, such as wind—especially during the dry summer months. This migration transformed the latent threat of undisturbed asbestos into a current hazard to anyone breathing the airborne particles. For example, residents described halting baseball games when large dust clouds swept over the field carrying particles from exposed piles of vermiculite. A study of Libby residents conducted in 2000 by the Agency for Toxic Substances and Disease Registry not only found that most participants reported multiple routes of exposure, but also that 18% of those x-rayed had abnormalities in the lining of lla their lungs—as compared with the expected rate of 0.2% to 2.3% for groups living in the United States who have no known asbestos exposures. These findings led the EPA to set out the intended removal action in a series of three memoranda issued between May 2000 and May 2002, which progressively broadened the scope of the cleanup. The original action memorandum, dated May 23, 2000 (“First Action Memo’), covered a former vermiculite export plant and screening plant, the former of which was being used as a retail lumber mill and the latter as a combined commercial/residential property.’ The First Action Memo authorized a time-critical removal action® to be completed by spring/summer 2001 with a total project ceiling of approximately $5.8 million for the two sites. The EPA determined that the action met the requirements to exceed the $2 million, 12-month cap because the asbestos in the environment posed an immediate threat to the local population; a cleanup beyond the cap was required to prevent, limit, or mitigate an emergency because of the size of the cleanup and the short construction season; and assistance from other government agencies was not anticipated on a timely basis. 8 Grace largely conducted the cleanup of the export plant in response to an EPA order dated May 23, 2000. 8 The EPA describes the cleanup in Libby as a single removal action both in the action memoranda and its briefs to this court: “EPA authorized a removal action to remove asbestos- contaminated materials from hundreds of homes, businesses, yards, gardens, school athletic fields, driveways, and mining plant facilities.” (emphasis added). Likewise, on appeal, Grace argues that the district court erred “by granting the United States summary judgment with respect to the validity of EPA’s characterization of the Libby response action as a removal rather than a remedial action.” Accordingly, we analyze the EPA’s activities in Libby as a single response action rather than a patchwork of discrete smaller actions. Cf. Colorado v. Sunoco, Inc., 337 F.3d 1233, 1241 (10th Cir. 2003) (concluding that there can be but one “removal action” per site). 12a The EPA then broadened the scope of the cleanup in an action memorandum amendment, dated July 20, 2001 (“Second Action Memo”), which covered “newly identified risks” at six additional locations and requested increased funding for costs associated with Grace’s reported denial of access to the screening plant. The six sites included two private residences, three local schools, and a public road running past the mine site. Among the EPA’s foremost concerns were the high asbestos concentrations in the materials at these sites and the easily crumbled state of the exposed asbestos. For example, the EPA found nuggets of tremolite around the high school track that it described as “readily friable, releasing copious amounts of fibers upon degradation.” The EPA measured asbestos concentrations of 2% by polarized light microscopy (“PLM”) at a pile of vermiculite at one residence, and concentrations up to 1.5% in material scraped off equipment at the other residence. !° Samples taken from materials visible outside the elementary school indicated that the area contained asbestos at levels between 3% to 8% by PLM, and testing at the road showed asbestos concentrations up to 5%. As with the First Action Memo, the EPA determined that the situation warranted an exemption from the cap and, 10 To put these numbers into perspective, in the First Action Memo, the EPA explained how asbestos concentrations in soil translate into risks to the public health: Currently EPA has not established, under any of its regulatory programs, an asbestos level in soil below which an exposure does not pose a risk. The 1% cut-off level for regulation under the Toxic Substances Control Act abatement program was established on the basis of analytical capability at the time, and was not established based.on the level of risk represented. To the contrary, at Superfund sites in California EPA Region IX found in certain settings that concentrations of asbestos less than 1% posed unacceptable inhalation risks when subject to disturbance by traffic. Significantly, the asbestos was in a friable state. 13a consequently, authorized a total site removal ceiling of approximately $20.1 million with an estimated completion date for most of the work by winter 2001/02. The EPA expanded the removal action again in an action memorandum amendment, dated May 2, 2002 (“Third Action Memo”), which brought a number of homes and businesses in Libby within the ambit of the removal action. The EPA again determined that an exemption from the statutory cap was warranted. In addition, although Libby was not added to the National Priorities List until October 2002, see 67 Fed. Reg. 65,315 (Oct. 24, 2002), the EPA proposed that the site be added in February 2002. The Third Action Memo also explained that the removal action was consistent with a planned future remedial action.!! The EPA estimated that the proposed work would take two to three construction seasons, and it raised the total project ceiling to approximately $55.6 million. The EPA continued removal activities consistent with its various Action Memos.?2 C. COST-RECOVERY ACTION AGAINST GRACE The EPA filed suit against Grace in March 2001 seeking recovery of all response costs incurred by the government and a declaration that Grace would be liable for future costs. See 42 U.S.C. §§ 9607, 9613(g)(2). In December 2002, the district court granted the EPA summary judgment on the liability issue but determined that there were material issues of fact regarding costs associated with certain properties. Grace I, 280 F. Supp. 2d at 1148. 11 The EPA proposed that the Libby site be added to the National Priorities List in February 2002 so that a remedial response action could be conducted. In October 2002, the site was officially added to the List. See 67 Fed. Reg. 65,315 (Oct. 24, 2002). 12 According to the EPA’s CERCLIS database, the EPA currently is in the study and remedy selection phase and a final remedy has not been selected for the Libby site. See http://cfpubl.epa.gov/ supercpad/cursites/csitinfo.cfm?id=0801744 (last visited July 26, 2005). l4a After a three-day bench trial, the district court issued an order awarding the EPA the full $54.53 million in reimbursement requested, including $11.32 million in indirect costs, and granting a declaratory judgment that Grace would be liable for future cleanup costs. United States v. W.R. Grace & Co., 280 F. Supp. 2d 1149 (D. Mont. 2003) (“Grace IT’). This appeal followed. ANALYSIS The EPA’s ability to recover the costs of its cleanup in Libby hinges on whether its response is properly characterized as a removal action, as argued by the EPA and found by the district court, or a remedial action, as argued by Grace.!° The tangled language of CERCLA hardly lends itself to clearcut distinctions between the two types of actions. Nonetheless, certain overarching attributes emerge with the time-sensitivity of the threat and the significance of the public health threat as key factors underlying removal actions. In Libby, the EPA determined that there was a serious threat to public health that required a time-sensitive response, and it acted on this information. We emphasize at the outset that 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 13 Under CERCLA’s burden-shifting procedures, once the EPA establishes its prima facie case for response costs, the burden shifts to Grace to prove that the response was inconsistent with the National Contingency Plan. See United States v. Chapman, 146 F.3d 1166, 1169 (9th Cir. 1998). Specifically, CERCLA provides that responsible parties shall be liable for “all costs of removal or remedial action incurred by the United States Government ... not inconsistent with the national contingency plan.” 42 U.S.C. § 9607(a)(4). Because the National Contingency Plan prescribes heightened requirements for a remedial action, a threshold inquiry is whether the action was a removal or remedial action. The EPA does not dispute that the cleanup did not meet the National Contingency Plan’s procedural requirements for a remedial action. 15a removal action of a size and cost not previously seen. But the situation in Libby was, and remains today, truly extraordinary. I. REMOVAL OR REMEDIAL ACTION: STRUCTURE OF THE TWO-STEP INQUIRY AND APPLICATION TO THE CLEANUP IN LIBBY The district court concluded, based on an arbitrary and capricious standard of review, that “[the EPA’s} decision to conduct a removal action rather than a remedial action is consistent with the [National Contingency Plan] and cannot be second-guessed by this Court.” Grace J, 280 F. Supp. 2d at 1143. We take a slightly different tack. CERCLA provides that the selection of response actions shall be upheld “unless arbitrary and capricious or otherwise not in accordance with the law.” 42 U.S.C. § 9613()(2). We agree that it was not arbitrary and capricious for the EPA “to approve a time-critical removal action.” Jd. at 1144. However, the statutory scheme compels us to take the inquiry one step further. See Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (“We may affirm on any ground supported by the record even if it differs from the rationale of the district court.”). Under CERCLA, once the response action is selected—in this case as a removal based on “an imminent and substantial danger to the public health’—then the EPA is authorized to take necessary actions consistent with the National Contingency Plan. See 42 U.S.C. § 9604(a)(1). Regulations implementing the Plan provide that “[i]f the [EPA] determines that a removal action is appropriate, actions shall, as appropriate, begin as soon as possible to abate, prevent, minimize, stabilize, mitigate, or eliminate the threat to public health or welfare of the United States or the environment.” 40 C.F.R. § 300.415(b)(3). Thus, even if the EPA’s selection of a removal action was proper, the question remains whether the actions actually taken by the EPA to combat the threat are properly categorized as such. 16a We agree with Grace that this second step of our inquiry is a question of law: Does the EPA’s response action in Libby fall within the statutory limits of a removal action? Grace’s challenge is built on the premise that the EPA termed its cleanup in Libby a removal action as a subterfuge when the response was, in substance, a remedial action.'4 To resolve this question, we must explore the statutory confines of removal actions under CERCLA and, within this legal structure, ask to what extent we should defer to the EPA’s interpretation based on the agency’s expertise. A. DECISION TO CONDUCT A REMOVAL ACTION IN LIBBY The EPA’s initial decision to conduct a removal action must be upheld unless Grace can demonstrate on the administrative record that the decision was arbitrary and capricious or otherwise not in accordance with law. 42 U.S.C. § 9613G)(2). Grace has not met this burden. The National Contingency Plan requires the EPA to consider a series of factors!’ to determine that it was 14 Grace attributes the timing and scope of the EPA’s cleanup to intense media attention regarding conditions in Libby. We have previously rejected an “ulterior motive” analysis in a challenge to whether CERCLA response costs incurred by a private landowner were necessary: “The issue is not why the landowner decided to undertake the cleanup, but whether it was necessary. To hold otherwise would result in a disincentive for cleanup.” Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 871-72 (9th Cir. 2001) (en banc) (citation omitted). This logic applies with equal force when the EPA is a party. We therefore do not inquire into the EPA’s subjective motives behind the cleanup, but rather ask if the objective evidence supports the response. 15 40 C.F.R. § 300.415(b)(2) provides that “[t]he following factors shall be considered in determining the appropriateness of a removal action ...:” (i) Actual or potential exposure to nearby human populations, animals, or the food chain from hazardous substances or pollutants or contaminants; 17a appropriate to initiate a removal action. Cf. Chapman, 146 F.3d at 1171-73 (holding that the EPA did not act arbitrarily or capriciously in ordering a removal action after considering the § 300.415(b)(2) factors). The EPA did so and its findings are extensively documented. The First Action Memo discusses five of the eight factors!® in concluding that the conditions in Libby presented an imminent and substantial threat to human health and the environment that met the regulatory criteria. Chief among the factors was that complete exposure pathways existed through which people were being exposed to asbestos. The First Action Memo details specific threats, including that “there are over 3000 three gallon buckets of unexpanded ‘Libby vermiculite” being used at a mushroom farm at the former screening plant, and that surface soils contained visible vermiculite that could readily migrate. The magnitude of the current and potential impact on public health resulting from the widespread use of (ii) Actual or potential contamination of drinking water supplies or sensitive ecosystems; (iit) Hazardous substances or pollutants or contaminants in drums, barrels, tanks, or other bulk storage containers, that may pose a threat of release; (iv) High levels of hazardous substances or pollutants or contaminants in soils largely at or near the surface, that may migrate; (v) Weather conditions that may cause hazardous substances or pollutants or contaminants to migrate or be released; (vi) Threat of fire or explosion; (vii) The availability of other appropriate federal or state response mechanisms to respond to the release; and (viii) Other situations or factors that may pose threats to public health or welfare of the United States or the environment. 16 Specifically, the memo invokes the first, third, fourth, fifth, and seventh factors listed in 40 C.F.R. § 300.415(b)(2). 18a vermiculite by Libby residents led the EPA in its Second Action Memo to invoke the catch-all eighth factor— [o]ther situations or factors that may pose threats to public health or welfare of the United States or the environment,” 40 C.F.R. § 300.415(b) (2)(viii): The sheer magnitude of the medical impact in Libby dictates the need for an expedient and thorough response. Unfortunately, because of the latencies of asbestos related diseases there is no easy way to directly correlate exposure to amphibole asbestos today to the direct development of an asbestos related disease. The only way to determine this for certain is to observe an individual for 10 to 40 years after exposure to see if they become sick. However, waiting for this type of certainty is unconscionable. CERCLA was designed and enacted to prevent illness and death resulting from exposure to hazardous substances, not wait for its occurrence to prove a threat. Finally, the Third Action Memo cites several factors in support of the EPA’s decision to expand the removal action and asserts that “[t]he significant medical impact of asbestos exposure in Libby dictates the need for an expedient and thorough response.” In light of the EPA’s carefully documented reasoning in the three Action Memos, we agree with the district court that the EPA’s decision to approve a removal action was not arbitrary and capricious. See 42 U.S.C. § 9613G)(2). This threshold decision does not, however, end our inquiry. We must consider how to classify the EPA’s action. B. CHARACTERIZATION OF THE EPA’S RESPONSE ACTION The question remains whether the steps actually taken by the EPA to combat the threat are properly characterized as a removal action. Whether the EPA’s cleanup activity was a removal action—or, on the other hand, a remedial action in 19a removal action’s clothing—is a question of statutory interpretation. “Congress provided definitions for ‘removal’ and ‘remedial action,’ and the classification of the activity is _determined as a matter of law.” Geraghty & Miller, Inc. v. Conoco Inc., 234 F.3d 917, 925-26 (5th Cir. 2000) (footnotes omitted); see also Sunoco, 337 F.3d at 1242 (“Nothing in [42 U.S.C.] § 9613G)(2) refers to the EPA’s characterization of a particular action [as a removal or remedial action].”). The decision to select a removal or remedial action is therefore distinct from the question whether the action carried out was, in fact, the action selected. It is to this crucial inquiry that we now turn. The statutory interpretation of “removal” is a legal issue that we review as a matter of law. See Carson Harbor Vill., 270 F.3d at 870. But in addressing the statute, the parties disagree as to the level of deference, if any, that we should grant the EPA’s formulation of the term “removal.” Resolving this question requires that we consider the Supreme Court’s recent refinement of the traditional agency-deference analysis under Chevron. See 467 U.S. at 842-45; United States v. Mead Corp., 533 U.S. 218, 226-27 (2001) (Chevron applies “when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.”). Following Mead, the continuum of agency deference has been fraught with ambiguity. Compare Barnhart v. Walton, 535 U.S. 212, 221 (2002) (applying Chevron deference even though the EPA reached its interpretation through means less formal than “notice and comment” rulemaking) with Mead, 533 U.S. at 226-27 (agency’s tariff classification had “no claim to judicial deference under Chevron, there being no indication that Congress intended such a ruling to carry the force of law”). Our decisions understandably have been conflicted as to whether Chevron deference only applies upon formal rulemaking and whether lesser deference applies in other situations. See, e.g., Cal. Dep’t of Soc. Servs. 20a uv. Thompson, 321 F.3d 835, 847-48 (9th Cir. 2003) (discussing how Mead and Walton have “further obscured the already murky administrative law surrounding Chevron”); Davis v. United States EPA, 348 F.3d 772, 779 n.5 (9th Cir. 2003) (‘The mere fact that the EPA engaged in informal agency adjudication ... does not vitiate the Chevron deference owed to the agency’s interpretation ....”). As Justice Scalia presciently noted in his dissent in Mead, “We will be sorting out the consequences of the Mead doctrine, which has today replaced the Chevron doctrine, for years to come.” 533 U.S. at 239 (Scalia, J., dissenting). The Supreme Court’s most recent pronouncement in National Cable & Telecommunications Ass’n v. Brand X Internet Services, 125 S. Ct. 2688 (2005), calls into question whether Mead in fact “replaced” Chevron as Justice Scalia contends. Perhaps because Brand X involved formal rulemaking, see id. at 2699, the Court did not clarify whether there is a “deference distinction” between Chevron and Mead. Nonetheless, in Brand X the majority’s language explaining Chevron is quite broad and does not come with a proviso that the Chevron deference is limited to agency interpretations expressed through formal rulemaking. See id. (“In Chevron, this Court held that ambiguities in statutes within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory gap in reasonable fashion.”); id. at 2700 (“Chevron’s premise is that it is for agencies, not courts, to fill statutory gaps.”). The interplay between Chevron and Mead is highlighted in Justice Breyer’s concurrence, in which he writes that “the existence of a formal rulemaking proceeding is neither a necessary nor a sufficient condition for according Chevron deference to an agency’s interpretation of a statute.” Id. at 2712 (Breyer, J., concurring). This explanation stands in contrast to Justice Scalia’s dissents in Brand X and Mead. See id. at 2713-21; Mead, 533 U.S. at 239-61. Echoing his dissent in Mead, Justice Scalia proffers in his Brand X dissent that “Mead drastically limited the categories of agency action that would qualify for deference under 2la Chevron.” 125S. Ct. at 2718 (Scalia, J., dissenting). Rather than clarifying what these categories are, Justice Scalia advances that, in Brand X, the Court “continues the administrative-law improvisation project it began four years ago in [Mead].” Id. Because the discussion in Brand X leaves some doubt as to the degree of formality of the underlying agency interpretation that is required for Chevron deference, we look to the post-Mead Supreme Court decision that most closely resembles the circumstances we face here. The Court explained last year in Alaska Department of Environmental Conservation v. EPA, 540 U.S. 461, 487-88 (2004), that the © EPA’s interpretation of a statute in internal guidance memoranda warrants respect but does not qualify for Chevron deference. Although the Court cited Mead in rejecting Chevron deference, it accorded “respect” to the “EPA’s reading of the relevant statutory provisions.” Jd. at 488. Accordingly, at a minimum, we impose a modified deference standard affording respect to the EPA’s informal interpretations here. But either under modified deference or full Chevron deference, the result would be the same: The EPA’s cleanup activities in Libby are properly categorized as a removal action. Despite the EPA’s insistence that arbitrary and capricious review applies to all aspects of our inquiry, the statute does not support this reading. CERCLA requires that we uphold the EPA’s “decision in selecting the response action” unless arbitrary and capricious or otherwise not in accordance with the law. 42 U.S.C. § 9613(j)(2). Here we address not the EPA’s selection of its remedy, but rather whether the actions taken fall within the statutory definition of a removal. Thus, we consider whether the statutory construction that the EPA advances in this litigation is correct as a matter of law. The degree of deference granted to the EPA’s interpretation of a statute is considered in light of Chevron and its progeny. See Alaska Dep't of Envtl. Conservation, 540 U.S. at 487-88. In contrast, an agency’s actions exercised under its statutory authority are generally subject 22a to arbitrary and capricious review. See id. at 496-97 (applying arbitrary and capricious review to the EPA’s taken actions under the Clean Air Act); see also 5 U.S.C. § 706(2) (applying arbitrary and capricious review to agency conclusions and findings). With the Supreme Court's recent agency-deference cases as a backdrop, we begin with Cheuron’s first step and ask “whether Congress has directly spoken to the precise question at issue,” Chevron, 467 U.S. at 842, i.e., whether a response action such as the one carried out in Libby is a removal or remedial action.!” If Congress has “unambiguously expressed [its] intent,” then our inquiry ends there, for that intent must be given effect as law. Id. at 842-43. If, however, the statute is ambiguous, then we look to the EPA’s interpretation of the statute. Even if full-blown Chevron deference is not due because of the informal nature of the interpretation, we will still accord a modified level of respect because “Chevron did nothing to eliminate Skidmore’s[!*} holding that an agency’s interpretation may 17 Although we have touched on the interplay between removal and remedial actions under CERCLA in prior decisions, the specific contexts in which those cases arose render them of limited use to our decision here. See California v. Neville Chem..Co., 358 F.3d 661, 667, 670 (9th Cir. 2004) (concluding that for the purposes of “the onset of the limitations period for recovery of remedial action costs under CERCLA,” no action can be “remedial” until adoption of a final remedial action plan); Hanford Downwinders Coalition, Inc. v. Dowdle, 71 F.3d 1469, 1475, 1477 n.10 (9th Cir. 1995) (holding that a government health assessment was a “removal or remedial action entitled to the protection of [42 U.S.C.] § 9613(h)” without the need to clarify the distinction between the two types of actions). 18 The Court explained in Skidmore v. Swift & Co. that “[t]he weight [accorded to an administrative] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” 323 U.S. 134, 140 (1944); see also Sunoco, 337 F.3d at 1243 (concluding that the 23a merit some deference whatever its form.” Mead, 533 U.S. at 234; see also Wilderness Soc’y v. United States Fish & Wildlife Serv., 353 F.3d 1051, 1059-62 (9th Cir. 2003) (en banc), amended by 360 F.3d 1374 (2004) (applying this analytical framework to review of an _ agency's interpretation). Put simply, even if EPA manuals, policy statements, and other pronouncements “are beyond the Chevron pale,” Mead, 533 U.S. at 234, they are not beyond the reach of our deference. As elaborated below, the statutory definition of “removal” is vague and, consequently, the EPA’s construction of this statutory term warrants our deference. In light of this deference and the well-documented record of the scope of cleanup activity, we hold that the EPA’s action in Libby is properly characterized as a removal action. In so holding, we recognize that the emphasis on time-sensitivity both in the EPA’s selection of a removal action and in our decision whether the action carried out actually was a removal action threatens to collapse the two issues into a single “immediacy” inquiry. Our review of the EPA’s decision to conduct a removal action is limited to whether the EPA considered the eight factors under 40 C.F.R. § 300.415(b)(2). In contrast, although immediacy is a paramount consideration when evaluating whether the action indeed was a removal, this second phase of our inquiry is not bound by those eight factors. For example, we also consider, among other things, the interplay between a removal and remedial action conducted at a single site and whether the action comports with the examples in 40 C.F.R. § 300.415(e). Grace contests the denomination of the action as a removal by cherry-picking discrete cleanup activities which, standing alone, might fall within the ambit of a remedial action. We refrain from slicing and dicing the EPA’s single, cohesive removal action into a mvriad of fractured parts. EPA’s characterization of a response action deserves Skidmore deference). 24a Such atomization would undermine the EPA’s scientific and administrative expertise by requiring us to second-guess whether, for example, the excavation of soil at the local elementary school was a remedial action because 1000 cubic yards of soil was removed when perhaps removal of less soil or less drastic measures could have been employed to counteract the immediate threat. Instead, we take a more comprehensive view of the administrative record in concluding that the EPA’s response was a removal action. 1. STATUTORY INTERPRETATION: REMOVAL AND REMEDIAL ACTIONS The first step under Chevron requires a straightforward exercise in statutory interpretation: “If a court, employing traditional tools of statutory interpretation, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” Chevron, 467 US. at 843 n.9. We begin with the statutory definitions because “[w]hen a statute includes an explicit definition, we must follow that definition, even if it varies from that term’s ordinary meaning.” Stenberg v. Carhart, 530 U.S. 914, 942 (2000). It has become de rigueur to criticize CERCLA as a hastily passed statute that is far from a paragon of legislative clarity. See, e.g., Exxon Corp. v. Hunt, 475 U.S. 355, 363 (1986) (commenting that a provision in CERCLA “is not a model of legislative draftsmanship”); Carson Harbor Vill., 270 F.3d at 883 (“Clearly, neither a logician nor a grammarian will find comfort in the world of CERCLA.”). The definitions of removal and remedial action exemplify this muddled language. See 42 U.S.C. § 9601(23) (defining “removal”); id. § 9601(24) (defining “remedial action”); id. § 9601(25) (defining “response”); see also supra notes 4, 6 (quoting definitions). The definition of “removal” is written in sweeping terms. It begins with the general statement that “removal” means “the cleanup or removal of released hazardous substances from the environment.” 42 U.S.C. § 9601(23). The definition 25a goes on to describe three categories of events that trigger removal: (1) "such actions as may be necessary [sic] taken in the event of the threat of release of hazardous substances into the environment’; (2) ’such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances”; and a third catch-all category, (3)”such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release.” Id. Finally, the definition lists a number of specific activities that fall within the definition of “removal’—’alternative water supplies,” “temporary evacuation and housing,” and “emergency assistance.” Although at first glance this half of the definition appears to provide concrete guidance by listing identifiable activities such as “security fencing,” this part too is left vague by the opening caveat that the term “removal” “includes, in addition, without being limited to, , security fencing ....”. Id. Consequently, “these examples serve only as a guide to what activities may appropriately be classified as ‘removal action.” Hanford Downwinders Coalition, 71 F.3d at 1478 n.13. The definition of “remedial action” is similarly broad, but can be distinguished from “removal” because it refers to “permanent” remedies and its list of specific actions is, in large part, distinct from the list included under “removal.” (For example, “removal” is focused on temporary and emergency activities.) To begin, the definition states that a “remedial action” is an action “consistent with permanent remedy tz ken instead of or in addition to removal actions.” 42 U.S.C. § 9601(24). Although the section begins with this clear language, it threatens to collapse into the definition of “removal” because it includes those actions “taken instead of or in addition to removal actions” and is triggered “in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public 26a health or welfare or the environment.” Jd. Thus, the triggering factors begin to sound virtually similar to the triggering factors for a “removal” action. In fact, two of the triggering factors for “removal” are almost identical to the factors for “remedy”: Removal — 42 U.S.C Remedy — 42 U.S.C. § 9601(23) § 9601(24) “such actions as may bej| “those actions consistent necessary [sic] taken inthe | with permanent remedy event of the threat of| taken in the event of a release of hazardous | release or threatened release substances into the | of hazardous substances into environment” the environment” “such other actions as may | “those actions consistent be necessary to prevent,| with permanent remedy minimize, or mitigate | taken to prevent or minimize damage to the public health | the release of hazardous or welfare or to the} substances so that they do environment, which may not migrate to cause otherwise result from aj} substantial danger to release or threat of release” | present or future public health or welfare of the environment. The definition concludes with three lists of specific examples classified as a remedy, such as “segregation of reactive wastes.” The first list details various locations of the release. As with the term “removal,” the definition for the first list diminishes the examples’ guidance with the qualifying language that the term “includes, but is not limited to,” the listed examples. Jd. The second list spells out when permanent relocation of residents, businesses, and community facilities is appropriate. Finally, the third list is a list of actions included within “remedy,” ranging from offsite storage to disposition of hazardous substances. 27a Adding to the confusion is the overlap between the two definitions. See Neville Chem. Co., 358 F.3d at 667 (noting listing of “provision of alternative water supplies” under both “remedial action” and “removal”); Geraghty & Miller, 234 F.3d at 927 (noting overlap). Attempting to untie the Gordian knot of these definitions solely based on their plain meanings is thus unavailing.!9 In interpreting “removal” and “remedial,” we next follow the Supreme Court’s guidance in taking a comprehensive, holistic view of CERCLA because it is a “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809 (1989)). CERCLA makes clear that the EPA has the tools of both removal and remedial actions at its fingertips when there is a release or threatened release of a hazardous substance. Specifically, the EPA is authorized “to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance, pollutant, or contaminant at any time ..., or take any other response measure consistent with the national contingency plan which the [EPA] deems 19 Other courts have similarly been unable to extract answers from the statute’s plain meaning: [T]hose courts which have attempted to unravel CERCLA’s definitions have found no solace in either the “plain meaning” of the statute or the reams of legislative history. Instead, in an attempt to glean legislative intent, courts seem to resort to a sort of “Purkinje phenomenon,” hoping that if they stare at CERCLA long enough, it will burn a coherent afterimage on the brain. CP Holdings, Inc. v. Goldberg-Zoino & Assocs., Inc., 769 F. Supp. 432, 435 (D.N.H. 1991) (footnote omitted) (referring to “[a]n optical illusion named for Johannes E. Purkinje (1787-1869), whereby the eye retains an afterimage of an object in a different color from the original”). 28a necessary to protect the public health or welfare or the environment.” 42 U.S.C. § 9604(a)(1). The statute as a whole, however, does little to clarify how to categorize a given response action except to suggest that remedial actions may be “long term.” See, e.g., id. § 9604(a)(2) (indicating that any removal action should contribute to the efficient performance of any “long term” remedial actions without further elaboration). Nor does the purpose of the statute provide definitive guidance, though it points towards a liberal reading of “removal” in order to effectuate CERCLA’s underlying purpose of “protect{ ing] and preserv[ing] public health and - the environment by facilitating the expeditious and efficient cleanup of hazardous waste sites.” Carson Harbor Vill., 270 F.3d at 880 (quoting Pritikin v. Dept of Energy, 254 F.3d 791, 794-95 (9th Cir. 2001) (internal quotation marks and citation omitted)); see also, e.g., Sierra Club v. Seaboard Farms, Inc., 387 F.3d 1167, 1172 (10th Cir. 2004) (advocating that CERCLA be interpreted liberally so as to accomplish its remedial goals). Specifically, because a removal action can be initiated promptly after notification of a threat, a liberal reading provides the EPA with greater flexibility to use this tool for the protection of the public health. Last, we turn to CERCLA’s legislative history for guidance. See BedRoc Ltd. v. United State. , 541 U.S. 176, 187 n.8 (2004) (noting “longstanding precedents that permit resort to legislative history only when necessary to interpret ambiguous statutory text”). But see Johnson v. United States, 529 U.S. 694, 723 (2000) (Scalia, J., dissenting) (criticizing majority’s reliance on legislative history because “foJur obligation is to go as far in achieving the general congressional purpose as the text of the statute fairly prescribes—and no further’). Unfortunately, legislative history is _ particularly unhelpful because of the haphazard passage of CERCLA with many of the more lucid descriptions of the statute 29a falling under the oxymeronic category of post-enactment “history.” See, e.g., 126 Cong. Rec. $16,428 (daily ed. Dec. 12, 1980), reprinted in 1 The Environmental Law Institute, Superfund: A Legislative History 87 (Helen Cohn Needham & Mark Menefee eds., 1982) (hereinafter “Superfund History”) (post-passage “clarification” by Sen. Stafford that “the purpose of [CERCLA] and the response plan is to protect the public health and welfare in its broadest sense”); see also Alfred R. Light, CERCLA Law and Procedure 12-18 (1991) (describing the “unusual back-room congressional compromise process” behind CERCLA); 1 Superfund History, supra, at xiii (“The emergence of this last-minute compromise hampers the ability of researchers to draw definitive conclusions from the otherwise extensive legislative history of CERCLA.”). Considering that no committee or conference reports address the version of CERCLA that ultimately became law, it is apt to describe the search for legislative history as “somewhat of a snark hunt.” Carson Harbor Vill., 270 F.3d at 885. Without the benefit of a definitive committee report or other deliberate congressional documents describing the genesis of the final bill, we are hesitant to rely on legislative history for guidance, especially in regard to the nuanced inquiry as to which side an action falls on the removal/remedial line. See United States v. Adams, 343 F.3d 1024, 1032 n.8 (9th Cir. 2003) (warning that subsequent legislative history is a “hazardous basis for inferring the intent of an earlier Congress”) (quoting United States v. McCoy, 323 F.3d 1114, 1121 (9th Cir. 2003)). What we can take away from the legislative history is the drafters’ overarching concern that aggressive action be taken to protect the public health. See, e.g., 126 Cong. Rec. $14,714 (daily ed. Nov. 19, 1980), reprinted in 1 Superfund History, supra, at 90 (statement of Sen. Mitchell) (“The Surgeon General of the United States has stated that toxic wastes may be the most serious threat to public health in cur country in the next decade. So it is in this spirit of urgency that I cosponsor this substitute [bill] today.”); 30a S. Rep. No. 96-848, at 2 (1980) (stating in report for unadupted draft of CERCLA that “the potential impact of toxic chemicals on the general public and environment tnrougn unsound ‘hazartous disposal sites and other releases of chemicals is tremendous’); see also 55 Fed. Reg. 8666, 8725 (Mar. 8, 1990) (statement in comments to 1990 amendments to the National Contingency Plan that “Section 121 of CERCLA makes clear, and the legislative history confirms, that the overarching mandate of the Superfund program is to protect human health and the environment from the current and potential threats posed by uncontrolled hazardous waste sites.”). Such statements encourage us to construe “removal” liberally to effectuate CERCLA’s remedial purpose, but they do not illuminate the removal/remedial distinction. Cf. Seaboard Farms, 387 F.3d at 1172 (“[CERCLA] must be interpreted liberally so as to accomplish its remedial goals.”); Kelley v. E.I. DuPont de Nemours & Co., 17 F.3d 836, 843 (6th Cir. 1994) (“We conclude that Congress intended that the term ‘removal action’ be given a broad interpretation.”). In sum, we are unable to discern Congress’s clear intent through the normal tools of statutory interpretation. The meanings of “removal” and “remedial action” under CERCLA are inescapably vague. | 2. DEFERENCE TO THE EPA’S CHARACTERIZATION Having concluded that Congress did not draw a clear line between removal and remedial actions, we turn to the second step under Chevron and ask whether, in view of the deference owed to the EPA, the Libby cleanup was a removal action as a matter of law. As noted earlier, the level of deference we accord to a given agency interpretation is directed by its form. The administrative posture of CERCLA presents two types of agency interpretations. One is the National sla Contingency Plan, which carries the force of law.2° The second relates to informal agency interpretations, which at a minimum receive respect and, depending on the interplay of Mead and Brand X, may even deserve Chevron deference. Whichever of these applies, we reach the same result: We hold that the EPA has rationally construed CERCLA and that construction deserves our respect. Cf. Alaska Dep't of Envtl. Conservation, 540 U.S. at 485-88 (EPA “rationally construed” Clean Air Act in internal guidance memoranda, which construction deserved “respect and approbation” but not Chevron deference). As interpreted by the EPA, the removal/remedial distinction boils down to whether the exigencies of the situation were such that the EPA did not have time to undertake the procedural steps required for a remedial action, and, in responding to such a time-sensitive threat, the EPA sought to minimize and stabilize imminent harms to human health and the environment. The EPA did so here. The definitions of “removal” and “remedial action”.in the EPA-promulgated National Contingency Plan me [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0701%3A1. Public record. Not legal advice.