Supreme Court won’t hear Libby case
SEATTLE – The U.S. Supreme Court on Tuesday let stand lower court rulings that require W.R. Grace & Co. to pay a $54.5 million federal bill for asbestos cleanup in Libby, Mont., a mining town described by federal regulators as one of the nation’s most contaminated Superfund sites.
The court rejected Grace’s appeal of a decision in favor of the Environmental Protection Agency, which sued Grace five years ago to recover the cleanup costs at a vermiculite mine.
The government is also pursuing a separate criminal case involving several former executives and managers of the mining company, who are charged with concealing health risks posed by the vermiculite operation. That trial will not get under way until at least next year. The asbestos-laden vermiculite laced into the mountains around Libby was used as insulation in hundreds of thousands of residences and office buildings. The mine, which began operation in 1939 and was purchased by Grace in 1963, once produced about 80 percent of the world’s supply of the mineral.
Grace operated the mine until 1992, unleashing what the U.S. attorney for Montana, William W. Mercer, described as a “human and environmental tragedy” in the town.
Nearly two-thirds of employees with more than 10 years of service tested positive for lung ailments, according to an internal company memorandum written in 1976 by one of the indicted men.
The cleanup of the town continues. Some residents said the matter would wind up in court yet again because the ultimate cost of remediation would be much higher than the $54.5 million at issue in the case decided Tuesday.
“It’s a small step, really, but it’s another step forward,” Gayla Benefield, a former bartender in Libby who is a leader of Grace critics in the town, said of the court’s action. Both she and her husband have been diagnosed with asbestosis, and her parents died from it. Her husband, however, did not work at the mine.
In its legal appeals, the company argued that the EPA’s efforts in Libby amounted to a long-term rehabilitation of the area, rather than an emergency cleanup.
Under the law, toxic polluters can be forced to repay the EPA the full cost of cleaning up hazardous substances that pose an immediate risk to the public, but face more limited charges for such long-term remediation of the area.
Grace argued that much of the agency’s work was indeed remedial, but the federal courts disagreed with that assessment and instead sided with an EPA contention that the public health crisis required ongoing action.
“The situation confronting the EPA in Libby is truly extraordinary,” the 9th U.S. Circuit Court of Appeals said in December. About 12,000 residents of Libby and nearby communities “face 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.”
During its cleanup operations over the last several years, the EPA has used vacuum trucks and other equipment to remove vermiculite-laced soil throughout the area.
Grace, which filed for bankruptcy protection in 2001 under the weight of thousands of asbestos-related claims across the nation, says it has spent millions of dollars in Libby to help residents address health issues.
An EPA toxicologist once said people in the Libby area had experienced “the most severe residential exposure to a hazardous material this country has ever seen.”
The criminal case, tied up in part over legal arguments about admissible evidence, centers on the question of whether company officials knowingly failed to warn workers of the dangers posed by prolonged exposure to vermiculite.