Opposition Brief — W.R. Grace & Co. v. United States (No. 05-1363)

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( a) AUG 3 0 2006

No. 05-1363 OFFICE OF THE CLERK |

In the Supreme Court of the Anited States

W.R. GRACE & CO., ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

SUE ELLEN WOOLDRIDGE

Assistant Attorney General

GREER S. GOLDMAN

JAMES D. FREEMAN

JOHN T. STAHR

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

The Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, 42 U.S.C. 9601

et seq., authorizes the President to respond to the

release of hazardous substances through “removal” or

“remedial” actions and sets out criteria for conducting

and recovering the costs of those two types of response.

The question presented is whether the Environmental

Protection Agency has properly characterized its re-

sponse action at the Libby Asbestos Site in Libby,

Montana as a “removal” action.

(I)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Alaska Dep't of Envtl. Conservation v. EPA,

560 tS 467 GOO 2 a ee ek 11,13

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) ..... 18

Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157

RE Bee Raa ea eet ego Cats Oe gre A ae em a ees 3

Key Tronic Corp. v. United States, 511 U.S. 809

ie 5 Sa 4 oho wd we a eee eee 2,3

Minnesota v. Kalman W. Abrams Metals, Inc.,

155 F.3d 1019 (8th Cir. 1998) ...............20. 16, 17

Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989) .... 2,3

Public Serv. Co. v. Gates Rubber Co., 175 F.3d 1177

CRE Cr SOOO) ck ese ha eae 16, 18

Seminole Tribe v. Florida, 517 U.S. 44 (1996) .......... Z

United States v. Bestfoods, 524 U.S. 51 (1998) ........ 2,3

United States v. Chapman, 146 F.3d 1166 (9th Cir.

WE a isc bop ioc guage cena en eis Caminesaceskaweess 4

United States v. Hardage, 982 F.2d 1436 (10th Cir.

1992), cert. denied, 510 U.S. 913 (1998) .............. 4

United States v. Mead Corp., 583 U.S. 218 (2001) ...... 18

(IIT)

Statutes and regulations: Page

Comprehensive Environmental Response, Compen-

sation, and Liability Act of 1980, 42 U.S.C. 9601

| RPO aT SA Reg i ee ae oa ETN Pe ee re 2

. S102 SOUS. OOO) ... ek 4,5,12

§ 101(24), 42 U.S.C. 960124) ............cee ee 4,6

$ 1010), @ USC. SOI) oo ue ksi seas 4

§ 104, 42 U.S.C. 9604 (2000 & Supp. ITI 2003) ..... 3

§ 104(c)(1), 42 U.S.C. 9604(c)(1) ......... 5, 6, 10, 12

§ 104(c)(1)(A), 42 U.S.C. 9604(c)(1)(A) .......... 8,9

§ 104(c)(1)(C), 42 U.S.C. 9604(e)(1(C) ............ 9

§ 105, 42 U.S.C. 9605(2000 & Supp. III 2003) ...... 3

§ 105(a)(8)(B), 42 U.S.C. 9605(a)(8)(B) ........... 10

O 10Ge) SUB. FOGUR) oc on Sine peebiaws 3, 8

P1GT@), USC: SOGRa) oo ee 3

§ 107(a)(1)-(4)(A), 42 U.S.C. 9607(a)(1)-(4)(A) ... 3, 10

S115), 42. UBC. SOIBGNE) oes vases 4,17

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eee BO AON) ko kins daw vboemeetesawes 5,17

tas REO) os bk sc cass ve bce cbweeacarws 5, 6

Pte, IIE Sh ov kk on wa ee een ewe Rea 6

CRIS DUNE 5 aos oa is Boe RRR SE 6

Section S00.490G ING) wo oo ccs e inde venceaneess 6

Exec. Order No. 12,580, 3 C.F.R. 193 (1988) ............ 3

Miscellaneous: Page

tO. Meee. Ga OlT GOO)) a. a a eee eS 10

In the Supreme Court of the Gnited States

No. 05-1363

W.R. GRACE & CO., ET AL., PETITIONERS

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-50a)

is reported at 429 F.3d 1224. The order of the district

court granting partial summary judgment (Pet. App.

51a-70a) is reported at 280 F’. Supp. 2d 1135. The order

of the district court awarding response costs (Pet. App.

71a-138a) is reported at 280 F. Supp. 2d 1149.

JURISDICTION

The judgment of the court of appeals was entered on

December 1, 2005. On February 15, 2006, Justice Ken-

nedy extended the time within which to file a petition for

a writ of certiorari to and including April 28, 2006, and

the petition was filed on April 27, 2006. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

The United States sued petitioners W.R. Grace &

Co., Kootenai Development Corporation, and W.R.

Grace & Co.-Conn. (collectively Grace) to recover the

government’s ongoing costs of responding to the im-

proper disposal of hazardous substances under the Com-

prehensive Environmental Response, Compensation,

and Liability Act of 1980 (CERCLA), 42 U.S.C. 9601 et

seq., at the Libby Asbestos Site in Libby, Montana. The

United States District Court for the District of Montana

ruled that Grace is liable under CERCLA for govern-

ment response costs at the site, Pet. App. 69a-70a, and

awarded the government $54.5 million and other relief,

id. at 136a-138a. The court of appeals affirmed, ruling,

among other things, that the government properly char-

acterized its response as a “removal” action. See 2d. at

la-50a.

1. Congress enacted CERCLA “in response to the

serious environmental and health risks posed by indus-

trial pollution.” United States v. Bestfoods, 524 U.S. 51,

55 (1998). That Act “grants the President broad power

to command government agencies and private parties

to clean up hazardous waste sites.” Key Tronic Corp.

v. United States, 511 U.S. 809, 814 (1994). It “both pro-

vides a mechanism for cleaning up hazardous-waste

sites, and imposes the costs of the cleanup on those

responsible for the contamination.” Pennsylvania v.

Union Gas Co., 491 U.S. 1, 7 (1989) (citations omitted),

overruled on other grounds, Seminole Tribe v. Florida,

517 U.S. 44 (1996). “The remedy that Congress felt it

needed in CERCLA is sweeping: everyone who is poten-

tially responsible for hazardous-waste contamination

may be forced to contribute to the costs of cleanup.”

Bestfoods, 524 U.S. at 56 n.1 (quoting Pennsylvania v.

Union Gas Co., 491 U.S. at 21).

CERCLA provides the President, acting primarily

through the Environmental Protection Agency (EPA),

with several alternatives for cleaning up sites contami-

nated with hazardous substances.’ As one alternative,

EPA can itself undertake response actions, using the

Hazardous Substances Superfund. See CERCLA § 104,

42 U.S.C. 9604 (2000 & Supp. III 2003); Cooper Indus.,

Inc. v. Aviall Servs., Inc., 543 U.S. 157, 161 (2004). The

United States can then recover EPA’s response costs

from responsible parties through a cost recovery action.

See CERCLA § 107(a), 42 U.S.C. 9607(a); Cooper

Indus., 548 U.S. at 161.

Section 107 of CERCLA “sets forth the scope of the

liabilities that may be imposed on private parties and

the defenses that they may assert.” Key Tronic, 511

U.S. at 814. Under Section 107(a)(1)-(4)(A), responsible

parties are liable for “all costs” of response incurred by

the United States that are “not inconsistent with the

national contingency plan.” 42 U.S.C. 9607(a)(1)-(4)(A);

see Cooper Indus., 543 U.S. at 161. The national contin-

gency plan (NCP), promulgated as a regulation pursuant

to Section 105 of CERCLA, 42 U.S.C. 9605 (2000 &

Supp. III 2003), prescribes requirements for selection

and implementation of removal and remedial actions. 40

C.F.R. Pt. 300.

’ CERCLA grants authority to the President, who has delegated

various powers to EPA. See Exec. Order No. 12,580, 3 C.F.R. 193

(1988).

As another alternative, EPA can seek to require the responsible

parties to undertake cleanup response actions, through an administra-

tive order or judicial injunctive relief. CERCLA § 106(a), 42 U.S.C.

9606(a). :

When the United States seeks to recover its response

costs, “consistency with the NCP is presumed,” and

“(t]he potentially responsible party has the burden of

proving inconsistency with the NCP.” United States v.

Chapman, 146 F.3d 1166, 1170-1171 (9th Cir. 1998);

see United States v. Hardage, 982 F.2d 1436, 1442 (10th

Cir. 1992), cert. denied, 510 U.S. 913 (1993). Section

113(j)(2) of CERCLA provides that courts “shall uphold

[EPA’s] decision in selecting the response action unless

the objecting party can demonstrate, on the administra-

tive record, that the decision was arbitrary and capri-

cious or otherwise not in accordance with law.” 42

U.S.C. 9613(j)(2).

2. Grace’s challenge in this case focuses on the

meaning and significance of CERCLA’s nomenclature

for cleanup actions. CERCLA designates cleanup ac-

tions as either “removal” actions or “remedial” actions,

and it designates either type of cleanup as a “response”

action. CERCLA § 101(23), (24) and (25), 42 U.S.C. 9601

(23), (24) and (25).

a. Section 101(23) of CERCLA defines the terms

“remove” and “removal” to include, among other things:

the cleanup or removal of released hazardous sub-

stances from the environment, such actions as may

be necessary taken in the event of the threat of re-

lease of hazardous substances into the environment,

such actions as may be necessary to monitor, assess,

and evaluate the release or threat of release of haz-

ardous substances, the disposal of removed material,

or the taking of such other actions as may be neces-

sary 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 re-

lease.

42 U.S.C. 9601(23). The NCP requirements for selecting

and conducting a removal action are set forth at 40

C.F.R. 300.415.

The NCP requires that EPA consider eight factors

in determining the appropriateness of a removal action,

including, among other things, the actual or potential

exposure to nearby human populations, actual or poten-

tial contamination of drinking water supplies, and high

levels of hazardous substances in soils at or near the

surface that may migrate. 40 C.F.R. 300.415(b)(2). If

EPA determines, based on those factors, that there is a

threat to the public health, it “may take any appropriate

removal action to abate, prevent, minimize, stabilize,

mitigate, or eliminate the release or the threat of re-

lease.” 40 C.F.R. 300.415(b)(1).

Section 104(c)(1) of CERCLA provides generally that

removal actions “shall not continue after $2,000,000 has

been obligated for response actions or 12 months has

elapsed from the date of initial response to a release or

threatened release of hazardous substances.” 42 U.S.C.

9604(c)(1); see 40 C.F.R. 300.415(b)(5). But Section

104(c)(1) and the NCP provide that those general limits

may be exceeded if:

(A) [EPA] finds that (i) continued response actions

are immediately required to prevent, limit, or miti-

gate an emergency, (ii) there is an immediate risk to

public health or welfare or the environment, and (iii)

such assistance will not otherwise be provided on a

timely basis, or (B) [EPA] has determined the appro-

priate remedial actions pursuant to paragraph (2) of

this subsection * * * or (C) continued response ac-

tion is otherwise appropriate and consistent with the

remedial action to be taken.

42 U.S.C. 9604(c)(1); see 40 C.F.R. 300.415(b)(5).

b. Section 101(24) of CERCLA defines the terms

“remedy” and “remedial action” to include, among other

things:

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 haz-

ardous 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 en-

vironment.

42 U.S.C. 9601(24) (footnote omitted). The NCP re-

quirements for conducting remedial actions are gener-

ally set forth at 40 C.F.R. 300.430. The NCP prescribes

additional and more detailed requirements for remedial

actions in comparison to removal actions. Only those

sites included on EPA’s National Priorities List (NPL)

are eligible for Superfund-financed remedial actions. 40

C.F.R. 300.425(b)(1). Each remedial action selected

shall be cost-effective, as determined by balancing long-

term effectiveness and permanence, reduction of toxic-

ity, mobility, or volume through treatment, and short-

term effectiveness. 40 C.F.R. 300.430(f)(1)(ii)(D).

3. This action arises from a governmental response

action that EPA initiated to address a “truly extraordi-

nary” situation in Libby, Montana, where a population

of some 12,000 people has faced “ongoing, pervasive ex-

posure to asbestos particles being released through doc-

umented exposure pathways.” Pet. App. 4a. That expo-

sure has created a substantial public health threat, docu-

mented by high rates of asbestos-related abnormalities

and the fact that “people are sick and dying as a result

of this continuing exposure.” Jbid.

From the 1920s until 1990, Grace and its predeces-

sors commercially mined and processed vermiculite ore

located in the mountains about seven miles northeast of

Libby. Those deposits include tremolite, a form of as-

bestos in the amphibole family. Grace trucked the pro-

cessed ore to its Screening Plant and Export Plant, from

which it was distributed nationwide. Grace also made

asbestos-contaminated vermiculite available to employ-

ees and to local residents to take home for personal use

in their homes, yards, and gardens. Pet. App. 8a-9a.

EPA’s initial investigation of the Libby site in No-

vember 1999 documented a large number of current and

historic cases of asbestos-related diseases around Libby

and a high likelihood that significant amounts of asbes-

tos remained. Pet. App. 9a-10a. EPA quickly broadened

its investigation through extensive sampling and analy-

sis, ultimately authorizing a removal action through a

series of three action memoranda progressively broad-

ening the scope of the removal. Jd. at lla.

a. On May 23, 2000, EPA issued an action memoran-

dum which approved a removal for two areas known as

the Screening Plant and the Export Plant. EPA deter-

mined that the “large concentrations of asbestos found”

at the plants “in all media: soil, dust and airborne,

clearly indicate that the human exposure pathway is

complete.” E.R. 211. EPA determined that surface soils

at both plants contain high measured levels of asbestos

scattered widely over the surface that can easily be

tracked offsite and then, “through normal activities,

such as vacuuming or other air disturbance, become re-

spirable dust.” E.R. 212. EPA found that rainfall and

oo“)

snow melt can wash fibers “onto neighboring parcels, or

into the Kootenai River,” and that hot dry-weather con-

ditions typical in Libby’s summer months lead to soil

migration, where Libby’s “persistent inversion pat-

terns” keep airborne contaminants “in the area for lon-

ger periods of time.” E.R. 212-213.

EPA also determined, in accordance with Section

104(c)(1)(A) of CERCLA, that the conditions presented

“an immediate threat to the local population” warrant-

ing a removal action exceeding $2 million in expendi-

tures and 12 months in duration. Pet. App. lla. EPA

projected completing the action by the spring or sum-

mer of 2001, at a cost of no more than $5.8 million. Jbid.*

b. On July 20, 2001, EPA issued an action memoran-

dum amendment, based on new information respecting

the scope of contamination, expanding the removal ac-

tion to address “newly identified risks” involving “high

levels of amphibole asbestos” at six additional locations,

including residential properties and three schools. Pet.

App. 12a; E.R. 410. EPA determined that the “asbestos

related deaths in Libby over the last two decades num-

ber in the hundreds,” and there are “currently hundreds

more who suffer from asbestos related illnesses.” E.R.

426. EPA relied on medical screening conducted by the

Agency for Toxic Substances and Disease Registry

(ATSDR), which showed that “more than a thousand

people will have asbestos related scarring in their lungs,

or the pleural lining of their lungs,” placing those people

“at a much higher risk for developing lung cancer, meso-

thelioma, and/or fibrosis.” /bid. The ATSDR screening

* Grace, with EPA’s oversight, primarily conducted the work

associated with the Export Plant under a unilateral administrative

order that EPA issued in accordance with Section 106(a) of CERCLA.

See Pet. App. lla n.8.

“showed the widespread occurrence of lung abnormali-

ties, not only among former Grace employees, but

among their families, and the population at large in

Libby.” E.R. 414. EPA concluded that the “sheer mag-

nitude of the medical impact in Libby dictates the need

for an expedient and thorough response” and that the

“direct and immediate steps should be taken to elimi-

nate to the extent possible the exposure of people to this

material.” E.R. 426.

EPA also determined, under Section 104(c)(1)(A) of:

CERCLA, that there was an immediate threat warrant-

ing a removal exceeding $2 million in expenditures and

12 months in duration for the six additional properties

and for completion of the Plant removal. EPA autho-

rized a total removal ceiling of $20.1 million, with an

estimated completion for most work by the winter of

2001-2002. Pet. App. 12a-13a.

ce. On May 2, 2002, based again on new information

respecting the extent of contamination, EPA issued an-

other action memorandum amendment expanding the

removal action to address contamination at hundreds of

additional homes and businesses. Pet. App. 13a; E.R.

503, 511. EPA sampling detected amphibole asbestos in

interior dust in 25% of the homes tested in Libby

and asbestos in soils at 52% of the properties sampled.

E.R. 511-512. At some homes, “vermiculite insulation is

literally falling out into the living space from gaps

around light fixtures and electrical switches.” E.R. 511.

EPA also found, again in accordance with Section

104(c)(1)(A), that the urgency of the threat warranted a

removal beyond $2 million in expenditures and 12

months in duration. In addition, because the Libby site

had been proposed for listing on the NPL, EPA found,

under Section 104(c)(1)(C) of CERCLA, 42 U.S.C.

9604(c)(1)(C), that a removal beyond $2 million in expen-

ditures and 12 months was appropriate and “consistent

with a planned future remedial action.” Pet. App. 13a &

n.11.4 EPA raised the ceiling for total project expendi-

tures to approximately $55.6 million, and it estimated

that the work would take some two to three construction

seasons. [bid.

4. While EPA’s removal action was underway, the

United States filed this action under Section 107(a)(1)-

(4)(A) of CERCLA to recover its response costs, and the

district court granted the United States partial sum-

mary judgment. See Pet. App. 5la-70a. The court ruled

that EPA’s determination to conduct a removal action

complied with the governing NCP standards. Jd. at 59a-

60a. The court also ruled that EPA did not act arbi-

trarily or capriciously in invoking Section 104(c)(1)’s

exemption from limits on the cost and duration of the

removal action. /d. at 59a-62a. The court held that

Grace was liable for certain documented costs, but con-

cluded that, as to other costs, issues of material fact re-

mained. Jd. at 64a-65a.

The district court held a three-day bench trial on

remaining cost issues. Pet. App. 14a. Grace stipulated

as to the adequacy of documentation for $32,972,126 in

removal costs, but contested other costs. The district

* On October 24, 2002, EPA listed the Libby site on the National

Priorities List, based on Montana’s designation of the site as the State’s

“top priority” pursuant to Section 105(a)(8)(B) of CERCLA, 42 U.S.C.

9605(a)(8)(B). See 67 Fed. Reg. 65,317 (2002). That listing makes the

site eligible for Superfund-financed remedial action. EPA continues to

conduct a remedial investigation to determine the full extent of the

contamination for the entire site, and it will then conduct a feasibility

study to assess remedial alternatives and ultimately select a final

remedial action.

court ultimately ruled that Grace was liable for all re-

quested removal costs through December 31, 2001, total-

ing $54,527,081. Jd. at 136a-137a. The court also

granted a declaratory judgment as to liability for future

costs. Id. at 1387a-138a.

5. The court of appeals affirmed the district court’s

judgment. See Pet. App. la-50a. The court of appeals

held that EPA did not act arbitrarily or capriciously in

authorizing a removal action under 40 C.F.R. 300.415(b),

see Pet. App. 17a, and that EPA’s response action at the

Libby site readily “falls within the bounds of a removal

action.” Jd. at 41a.

The court of appeals noted that the relevant provi-

sions of CERCLA governing the characterization of re-

sponse actions are not clear in all respects, and the court

considered whether EPA’s characterizations of its ac-

tions were entitled to some measure of deference. See

Pet. App. 18a-24a. The court concluded that EPA’s con-

struction of the statutory term “removal” was entitled,

“at a minimum,” to “a modified deference standard af-

fording respect to the EPA’s informal interpretations

here.” Jd. at 21a (citing Alaska Dep’t of Envtl. Conser-

vation v. EPA, 540 U.S. 461, 487-488 (2004)). Applying

that standard, the court concluded that “EPA’s cleanup

activities in Libby are properly categorized as a removal

action.” Jbid.

The court of appeals explained that EPA’s “informal

interpretations combined with the descriptions in the

[NCP] provide a persuasive interpretation that removal

actions encompass interim, partial time-sensitive re-

sponses taken to counter serious threats to public

health.” Pet. App. 37a-38a. The court also observed

that “EPA’s scientific basis for finding an immediate

threat to the public health is thoroughly documented

over thousands of pages.” Jd. at 39a. The court ruled

that EPA did not act arbitrarily or capriciously, in light

of the “daunting realities” posed by the “widespread and

pervasive asbestos contamination and the potential for

further migration of asbestos fibers,” to invoke Section

104(c)(1)’s exemptions to the generally applicable limita-

tions on the cost and duration of removal actions. Jd. at

43a, 46a. The court explained that EPA’s need to invoke

those exemptions in this case was “not surprising given

the urgency, magnitude, and long-standing nature of the

problem.” /d. at 45a.

ARGUMENT

In light of the “unique” and “truly extraordinary”

public health threat posed by the Libby Absestos Site

(Pet. App. 4a, 14a-15a), the court of appeals properly

affirmed the district court’s judgment that the United

States is entitled to recover its costs of responding to

the hazardous conditions at that site. Contrary to

Grace’s contentions, the court of appeals’ decision does

not conflict with any decision of this Court or of another

court of appeals. That decision presents no recurring

issue of national importance warranting this Court’s

review.

1. Grace contends (Pet. 13) that the court of appeals

erred in concluding that all of EPA’s abatement activi-

ties at issue in this case qualify as a removal action

within the meaning of Section 101(23) of CERCLA, 42

U.S.C. 9601(23). Grace “does not deny that CERCLA

authorizes the EPA to conduct removal actions to con-

tain or abate immediate environmental hazards” (Pet.

15): Rather, in Grace’s own words (Pet. 16):

All Grace is saying here, thus, is that it is entitled

to its day in court to try to prove that particular ele-

ments of the $54 million requested by the Govern-

ment * * * were not necessary to contain or abate

an immediate environmental hazard, and thus not

recoverable as “removal” costs under CERCLA.

But Grace has had “its day in court.” Grace’s petition,

which simply seeks review of the court of appeals’ appli-

cation of context-dependent legal vrinciples to the par-

ticular—and unusual—facts in this case, presents no

issue warranting this Court’s review.

Grace acknowledges that CERCLA subjects parties

that are responsible for hazardous substance contamina-

tion to liability for the costs of “removal” and “remedial”

actions, but imposes different procedural requirements

for implementing and recovering the costs of those two

types of response actions. See Pet. App. 8a, 14a-15a.

The sole issue here is whether EPA’s specific response

activities at the Libby Asbestos Site “fall within the stat-

utory limits of a removal action.” Jd. at 16a.

The court of appeals recognized—and Grace does

not dispute—that Congress defined both “removal” and

“remedial” actions in “sweeping” and “overlap[ping]”

terms. Pet App. 24a-27a. The court concluded that the

“normal tools of statutory interpretation” do not yield a

categorical standard for distinguishing between removal

and remedial actions, but instead require the exercise of

judgment based on the facts of a particular case. Jd. at

30a. The court of appeals also recognized that Congress

gave EPA a central role in conducting response actions

and applying those terms. The court correctly con-

cluded, in accordance with this Court’s decisions, e.g.,

Alaska Dep't of Envtl. Conservation, 540 U.S. at 485-

488, that EPA’s “rational[{} * * * construction” of those

particular terms “deserves our respect.” Pet. App. 31a.

The court of appeals examined the particular cireum-

stances that EPA faced in addressing the Libby site,

including the “need of immediate action,” Pet. App. 33a,

the “sequence of activities,” 2bid., and EPA’s explana-

tion of its actions, id. at 34a-39a, which involved “ex-

ceedingly complex” issues respecting risk assessment,

testing methodology, and data analysis, zd. at 39a. The

court found that EPA had “thoroughly documented” the

“scientific basis for finding an immediate threat to the

public health. /bid. Indeed, EPA’s memoranda explain-

ing its actions are based on an extensive administrative

record that includes, among many other things, “com-

prehensive” toxicology reports “explaining the imminent

and substantial endangerment to public health in

Libby,” EPA’s “extensive responses” to Grace’s “com-

ments on the cleanup,” and “lengthy findings” respect-

ing medical testing of Libby residents. /bid.; see 2d. at

39a-4la. The administrative record “also documents the

concrete steps” that EPA undertook to abate those

threats. Jd. at 41a. :

In light of CERCLA’s “sweeping language” defining

a removal, the “significant” deference due to EPA’s ex-

pertise in administering the statute, and “the scope of

the interim cleanup,” the court of appeals properly

“hfe]ld that the EPA’s cleanup in Libby falls within the

bounds of a removal action.” Pet. App. 41a. The court

of appeals correctly concluded that, in light of the wide-

spread public health risk in.this case, “EPA had no

choice but to undertake an aggressive removal action of

an expansive scope.” /d. at 42a. The unanimous court of

appeals’ fact-based affirmance of the district court’s

judgment involves nothing more than the application of

largely uncontroverted general principles to a “unique”

public health threat that, while of vital importance to the

Libby residents, poses no legal issue of recurring impor-

tance warranting this Court’s review.

While Grace cannot seriously controvert the public

health risks created by its actions, it insists (Pet. 17)

that the court of appeals erred because it treated the

government’s comprehensive attempt to abate the most

immediate threats as a single removal action. See Pet.

23-25. Grace’s view of what is properly included as part

of the removal action is mistaken, and the court of ap-

peals properly declined Grace’s invitation to divide

“EPA’s single cohesive removal action into a myriad of

fractured parts.” Pet. App. 23a; see 2d. at 1la n.9, 24a,

42a. But more fundamentally for present purposes, the

question of what activities in this case are properly part

of the removal action is a factbound matter-.of no conse-

quence beyond the confines of this particular cost recov-

ery suit. Indeed, as Judge Bea noted in his concurrence,

even if the specific activities that Grace challenges are

evaluated separately, they would still properly consti-

tute a part of the removal action at issue in this case.

See zd. at 48a-50a.

Grace engages in hyperbole in suggesting (Pet. 27)

that the court of appeals has given EPA “carte blanche”

to extend its removal powers beyond statutory bounds.

To the contrary, the court of appeals emphasized the

limited reach of its holding. It expressly stated that

“there must be outer limits to removal actions” but that

“EPA did not exceed these limits in this case.” Pet.

App. 42a. The court of appeals made clear that it under-

stood its judicial obligation to determine whether

“EPA’s characterization of a given response action ac-

cords with CERCLA, as we so determine here.” Jbid.®

2. Grace mistakenly asserts (Pet. 17-21) that the

court of appeals’ decision conflicts with decisions of the

Eighth and Tenth Circuits. Grace specifically contends

(Pet. 20) that the conflict arises from the court of ap-

peals’ determination to address the Libby response as a

single removal action rather than on an item-by-item

basis, which, in Grace’s view, “cannot possibly be

squared” with Minnesota v. Kalman W. Abrams Metals,

Inc., 155 F.3d 1019 (8th Cir. 1998), and Public Service

Co. v. Gates Rubber Co., 175 F.3d 1177 (10th Cir. 1999).

Those decisions, however, address no such issue and

present distinctly different circumstances.

In Abrams Metals, Minnesota appealed from a sum-

mary judgment that its cleanup actions under CERCLA

constituted a remedial action rather than a removal ac-

tion. The Eighth Circuit rejected Minnesota’s request

for a vacatur and remand to allow further factual devel-

opment. 155 F.3d at 1024. The court of appeals did

not hold that the response action should be divided, as

Grace advocates here, into a line-item determination of

whether each separate activity constitutes a removal or

remedial action. Rather, the court held that the entire

response action constituted a remedial action. bid. As

Grace correctly notes (Pet. 18), the Eighth Circuit did

remand to give the defendants in that case the opportu-

* Grace’s mantra that it has been denied its “day in court” (Pet. 16,

20, 22, 23 n.3) cannot be reconciled with the extensive opportunities it

has already had to convince the district court and the court of appeals

that EPA’s response activities did not constitute a removal action.

Grace was free to contest any aspect of the record on summary judg-

ment. The district court and the court of appeals carefully considered

the arguments that Grace made and properly rejected them.

nity to demonstrate that particular costs were inconsis-

tent with the NCP. 155 F.3d at 1026. But that remand

addressed only whether particular costs were inconsis-

tent with the NCP’s remedial action requirements, and

not whether particular costs should be considered as

being for removal or remedial actions. /bid. (defendants

may prove that inconsistency with the NCP “caused the

State to incur unreasonable or unnecessary response

costs in implementing even an appropriate remedial ac-

tion”).

Furthermore, even as to the Eighth Circuit’s holding

that the response was a remedial action, the factual cir-

cumstances differ substantially. In Abrams, the State

had never even “made the determination required by

§ 300.415(b) of the NCP” to approve a removal action.

155 F.3d at 1024.° The Eighth Circuit also noted the

“leisurely manner” in which the State proceeded, allow-

ing some four years to pass from the site assessment

revealing hazardous lead concentrations until initiating

the response action. /bid. Here, by contrast, EPA ap-

proved a removal action under 40 C.F.R. 300.415(b) in

“extensively documented” findings, the court of appeals

held that this decision was not arbitrary and capricious,

and petitioners do not seek further review of that hold-

ing. See Pet. App. 16a-17a (citing 42 U.S.C. 9613(j)(2)).

EPA also acted quickly to address the extraordinary

contamination in Libby, conducting an initial site visit in

November 1999, initiating a larger rapid-scale investiga-

tion from December 1999 through April 2000 in which it

* The NCP, as discussed (p. 5, supra), provides, with respect to the

approval of removal actions, that the government “may take any

appropriate removal action” when it determines based on the eight

factors set forth in 40 C.F.R. 300.415(b)(2) that there is a threat to the

public health and welfare.

collected over 2000 samples, and issuing its first ac-

tion memorandum on May 23, 2000, authorizing a re-

moval action. See id. at 9a-1la, 58a. In turn, as newly

discovered health risks became known, EPA acted

quickly to expand the removal action to address human

exposure pathways at numerous other locations. See pp.

7-9, supra.

Similarly, in Gates Rubber Co., the Tenth Circuit

held only that the relevant response action in that case

was a remedial action. 175 F.3d at 1184. The court did

not rule that an item-by-item analysis should be con-

ducted in distinguishing between removal and remedial

actions. In addition, the action in Gates Rubber Co. was

brought by a private landowner who had conducted the

response action, and there was no determination by

EPA or the State of Colorado to conduct a removal ac-

tion under 40 C.F.R. 300.415(b). Rather, the land-

owner’s consultant prepared a report entitled “Proposal

for Remedial Action,” the landowner studied the site

over a two-year period before taking action, and the

landowner “intended to remediate the site and sell it and

recoup its cleanup costs.” 175 F.3d at 1184. Thus, Gates

Rubber Co. also presents no conflict and no basis for

further review.

3. Petitioner’s assertion (Pet. 27) that furti:er review

is justified because the court of appeals purportedly ex-

pressed “open confusion” as to this Court’s deference

standards is unpersuasive. The court of appeals cor-

rectly recognized that this Court has not definitively

resolved the scope of deference to be accorded to differ-

ing forms of informal agency interpretation. See Pet.

App. 19a-21a (discussing the “interplay” between Chev-

ron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984), United

States v. Mead Corp., 533 U.S. 218 (2001), and other de-

cisions of this Court). But this case does not present a

useful vehicle for exploring that issue, because the de-

gree of deference does not have controlling significance

here. As the court of appeals expressly stated, under

either “modified deference or full Chevron deference,

the result would be the same: The EPA’s cleanup activi-

ties in Libby are properly characterized as a removal

action.” Jd. at 2la. Indeed, the same result would ob-

tain if the agency received no deference at all. EPA’s

characterization of the Libby response as a removal “is

amply supported by the administrative record.” Jd. at

42a.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.