## Facts

- W.R. Grace & Co. operated vermiculite mining and processing facilities near Libby, Montana from roughly 1963 to 1990.
- The vermiculite ore was contaminated with amphibole asbestos, and fibers spread into the community through mine tailings placed in residential and public areas and through dust from operations.
- By the late 1990s, residents experienced severe asbestos-related health effects; EPA investigations found widespread contamination in homes, schools, and yards, with asbestos becoming airborne during ordinary activities and wind.
- EPA initiated a response under CERCLA and, through successive Action Memoranda and amendments, classified the work as a “removal action” addressing an immediate and substantial public health threat.
- EPA relied on CERCLA and National Contingency Plan exceptions to exceed ordinary removal-action time and cost limits, citing ongoing exposure risks.
- The United States sued Grace for cost recovery; Grace did not dispute it was a responsible party but challenged EPA’s classification of the work as removal rather than remedial.

## Issues

1. Whether EPA’s Libby, Montana cleanup activities were properly characterized as a CERCLA “removal action” rather than a “remedial action.”
2. Whether EPA lawfully invoked statutory and regulatory exceptions allowing it to exceed the usual time and cost limitations applicable to removal actions.

## Decision

- The Ninth Circuit affirmed judgment for the United States.
- The court held EPA reasonably classified the Libby response as a CERCLA removal action based on the nature, purpose, and timing of measures aimed at abating ongoing exposure.
- The court held EPA lawfully exceeded removal-action limits because the administrative record documented a continuing and serious threat and the need for continued response.
- The court upheld cost recovery because EPA’s response was consistent with CERCLA and the National Contingency Plan and was not shown to be arbitrary, capricious, or contrary to law.

## Legal Principles

- CERCLA’s definition of “removal” is broad and can cover extensive actions directed at preventing, minimizing, or mitigating a current threat to public health or the environment; duration alone does not convert a response into a “remedial” action.
- In reviewing EPA’s choice and classification of response actions in a cost-recovery case, courts apply a highly deferential standard and will not overturn agency decisions absent arbitrariness, caprice, or legal error.
- EPA may exceed statutory time and monetary limits for removal actions when statutory and National Contingency Plan criteria for continued response to an ongoing emergency threat are satisfied and supported in the administrative record.
- Potentially responsible parties generally cannot defeat cost recovery by re-labeling EPA’s selected response after the fact when EPA’s characterization is reasonable and supported.

## Conclusion

The Ninth Circuit upheld EPA’s long-running Libby asbestos response as a lawful CERCLA removal action, approved EPA’s use of exceptions to exceed removal limits, and affirmed the United States’ right to recover necessary response costs from W.R. Grace as a responsible party.


United States v. W.R. Grace & Co., 429 F.3d 1224 (9th Cir. 2005)