- The Washington Times - Tuesday, October 10, 2006


W.R. Grace & Co. lost its bid to the Supreme Court yesterday to get out from under a $54 million bill to clean up asbestos in the Montana mining town of Libby.

Justices rejected without comment on Grace’s appeal of lower court rulings that said the Columbia, Md.-based company was responsible for the entire cost of removing asbestos-contaminated soil in Libby.

The case pits Grace, which operated a vermiculite mine in Libby for 27 years, against the Environmental Protection Agency (EPA), which oversees the federal Superfund program for the nation’s worst hazardous waste sites.

Grace argued in court papers that EPA had no authority to hand the company the entire bill, as well as responsibility for future costs, for the cleanup. The 9th Circuit U.S. Court of Appeals and a federal district judge sided with EPA, which sued Grace in 2001 to recover cleanup costs.

“The situation confronting the EPA in Libby is truly extraordinary,” the appeals court wrote in its opinion in December. “We cannot escape the fact that people are sick and dying as a result of this continuing exposure.”

Grace said others appeals courts have ruled that companies can’t be forced to pay the entire cost of cleaning a polluted site without being allowed to challenge whether the cleanup was necessary to contain or remove contamination.

Solicitor General Paul Clement, the Bush administration’s Supreme Court lawyer, urged justices not to take the case. EPA was within its bounds to seek to have Grace pay for the cleanup, Mr. Clement said.

EPA Administrator Stephen L. Johnson estimated last year that it would take another five to six years to finish cleaning contaminated sites in Libby, in Montana’s northwest corner.

Also yesterday, the court refused to consider the case of three small cigarette companies trying to avoid making payments to 30 state governments that reached a huge financial settlement with the giants of the tobacco industry.

After the settlement eight years ago in which the four biggest tobacco companies paid $206 billion, each of the 30 states passed a law requiring companies that didn’t participate to pay money into escrow funds to satisfy future damage awards in cigarette-related lawsuits.

The three small companies sued, asserting that each state’s escrow statute violated antitrust law.

The laws each state passed were substantially identical to model legislation in an appendix to the settlement that had been reached with the biggest companies in the tobacco industry.

The 2nd U.S. Circuit Court of Appeals in New York, where the settlement negotiations had taken place, allowed the small companies to pursue the antitrust claims.

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