U.S. v. W.R. Grace & Co.-Conn.
| Decision Date | 26 August 2003 |
| Docket Number | No. CV-01-72-M-DWM.,CV-01-72-M-DWM. |
| Citation | 280 F.Supp.2d 1149 |
| Court | U.S. District Court — District of Montana |
| Parties | UNITED STATES of America, Plaintiff, v. W.R. GRACE & COMPANY-CONN. and Kootenai Development Corporation, Defendants. |
Sherry S. Matteucci, Victoria L. Francis, Office of U.S. Attorney, Billings, MT, Matthew D. Cohn, Andrea Madigan, David F. Askman, James D. Freeman, Heidi Kukis, Mark C. Elmer, U.S. Dept. of Justice, Denver, CO, John C. Cruden, U.S. Environmental Enforcement Section, Thomas Sansonetti, U.S. Dept. of Justice, Washington, DC, for United States.
Kenneth W. Lund, John D. McCarthy, Linnea Brown, Holme, Roberts & Owen, Denver, CO, Gary L. Graham, Dean A. Hoistad, David C, Berkoff, Terry J. MacDonald, Garlington, Lohn & Robinson, PLLP, Missoula, MT, for Defendants.
The United States brought this action against Defendants W.R. Grace & Co.Conn. ("Grace-Conn.") and Kootenai Development Corporation ("KDC") under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. to recover costs the United States has incurred responding to releases or threats of releases of asbestos in and around Libby, Montana. A bench trial was held January 6-8, 2003. Following the trial, the Court ordered the parties to submit proposed findings of fact and conclusions of law with citations to the record before the court. After the parties submitted their proposed findings and conclusions, the Court heard closing arguments on April 25, 2003. After considering the evidence and testimony submitted at trial, along with the parties' arguments and proposed findings of fact and conclusions of law, I find in favor of the United States in the amount of $54,527,081.11 and such other relief as is set forth below. I base my decision on the following Findings of Fact and Conclusions of Law.
1. The parties have stipulated that Grace-Conn. is a liable party under CERCLA, 42 U.S.C. § 9607(a), for the Mine site, the former Screening Plant, the Flyway, the Bluffs, the former Export Plant, the Libby High School, the Libby Middle School, Plummer Elementary School, Kootenai Valley Christian School, Champion Haul Road, Rainy Creek Road, and the following residential or commercial properties in and near Libby, Montana: Beaulia, Belangie, Bowker, Brown (653 Flower Creek), Brown (346 Granite), Brownlee, Burshia, Cady, Calhoun, Cote, Dennis, Downey, Drury, Epperson, Fuhlendorf, Geer, Graham, Hebenstreit, Hilliard, Hoff, Jacabson, Jeresek, Jordon, Kootenai Angler, Long, McCulley, Mohr, Munro, Nixon, Nores, Parker (1421 Main), Parseau, Peterson, Phillips, Powers (2297 Kootenai River Rd.), Powers (2293 Kootenai River Rd.), Ray, Rice, Rodgers, Sanderson (123 Hamann), Sanderson (4241 Hwy 37), Sanderson (113 Oak), Schenck, Skramstad, Siefke, Smith, Spencer (500 Jay Effar), Spencer (229 Pinewood), Spencer Law Firm, Struck, Stubbs, Temple, Visger, Westfall, Wilkes (461 Parmenter), Wilkes (600 Ave. B). Revised Agreed Fact 48.
2. The parties have stipulated that KDC is a liable party under CERCLA, 42 U.S.C. § 9607(a)(1), for the Mine Site, Kootenai Bluffs and Kootenai Flyway because it is the "current owner" of the properties. Revised Agreed Fact 51.
3. Asbestos is a hazardous substance under CERCLA. Agreed Fact 7. See also 42 U.S.C. § 9601(14)(E) (); 40 C.F.R. § 302.4 ().
4. The parties have stipulated that any release or threat of release of asbestos at the properties that form the Libby Asbestos Site was not caused by an act of war. Revised Agreed Fact 52.
5. The parties have stipulated that any release or threat of release of asbestos at the Libby Asbestos Site was not caused by an act or omission of a third party. Revised Agreed Fact 53.
6. On May 23, 2000, the Environmental Protection Agency ("EPA") sent W.R. Grace & Co. and Grace-Conn. a letter demanding payment of response costs of $561,790.85 that the United States had incurred through April 30, 2000. Agreed Fact 56.
7. Paul Peronard is the EPA's On-Scene Coordinator at the Libby Asbestos Site. Tr. at 38:9-19.
8. In this capacity, Mr. Peronard is responsible for overseeing the investigation and cleanup of hazardous waste sites. Tr. at 38:1-2. He has personal knowledge of the work done at the Site, and work done by the Department of Transportation (Volpe Center) and the Agency for Toxic Substances and Disease Registry (hereinafter "ATSDR") under interagency agreements with EPA. Tr. at 39:25 to 44:11.
9. Mr. Peronard's testimony is very credible.
10. Vermiculite Mountain (the "Mine Site") is a geologic formation that includes naturally occurring asbestos. Tr. at 54:19-20.
11. EPA's removal actions in and near Libby were not based on the presence of naturally-occurring asbestos undisturbed by human activity. Tr. at 55:19 to 56:8. Rather, EPA sought to remove vermiculite material disposed of in and near Libby during the mining, processing, and sale of vermiculite. Tr. at 56:5-8.
12. EPA excavated three to four feet of soil from part of the former Screening Plant north of Rainy Creek, currently owned by the Parker family. Tr. at 63:7-19.
13. On part of the Parker property where the Parkers intend to build a house, EPA encountered processed vermiculite at greater depths than at the rest of the former Screening Plant. This material was excavated so that installation of a septic system and drain field at the planned house would not require a future EPA response. Tr. at 63:20 to 64:14.
14. This area appears to have been a borrow pit or depression that was filled with processed vermiculite. Tr. at 63:23-24. Approximately 3,000 cubic yards of material were removed from this area. Tr. at 619:4-21.
15. At the former Screening Plant, EPA took steps to avoid removing soils that were not related to vermiculite mining and processing. These steps included visual observation and refraining from excavating soils that were below a volcanic layer of ash that pre-dated vermiculite mining and processing. Tr. at 60:23 to 61:11.
16. EPA did not encounter the ash layer while excavating on the part of the Parker property discussed above in paragraphs 13 and 14. Tr. at 65:15 to 66:4.
17. Testimony by Mike Hutchinson, the geologist responsible for monitoring the excavations at the Libby Asbestos Site, contradicts testimony by Mr. Peronard. However, I find Mr. Hutchinson's testimony was not credible.
18. EPA documented the presence of layers of naturally-occurring asbestos four to ten feet below the surface of parts of the former Screening Plant. See A.R. Doc. No. 485941.
19. Processed, unexfoliated vermiculite was found at depths of over ten feet in an area of the Screening Plant north of Rainy Creek. A.R. Doc. No. 485941, at 2. The document reflects that EPA excavated this area "to prevent exposure to workers who in the near future would potentially be digging basements, footing trenches, water and septic lines." Id. at 3.
20. The mining of vermiculite removed rock, dirt, and vegetation from the top of Vermiculite Mountain, creating an extensive disturbed area at the Mine Site. Tr. at 359:9 to 360:22 21. Materials eroding off the Mine Site flowed to Rainy Creek and then to the Kootenai River, upstream from the Screening Plant. Tr. at 354:5 to 356:3.
22. Mining operations at the Mine Site have exposed substantial surface area that would otherwise have been covered with dirt, rock and vegetation. Tr. at 359:16-24.
23. When the Mine Site was being mined, rainfall washed material from the surface of the Mine Site to the Kootenai River. Tr. at 361:7 to 362:3.
24. The disturbed area at the Mine Site was caused by mining activity. Any asbestos that washed off disturbed areas at the Mine Site to the Kootenai River was not in its "unaltered form, or altered solely by naturally occurring processes or phenomena."
25. The United States claims it has incurred costs of $54,527,081.11 through December 31, 2001, for response activities at or related to the Libby Asbestos Site. This figure does not include prejudgment interest. Revised Agreed Fact 70.
26. The parties have stipulated that EPA has adequately documented $1,214,289.97 in EPA payroll and travel costs; $1,372,000.00 in certain EPA indirect costs; 32; $2,382,127.89 in EPA contract costs; $26,927,611.95 in EPA interagency agreement costs, excluding ATSDR and Volpe Center/Aeolus, Inc. costs; $840,352.29 in EPA miscellaneous costs; $27,379.35 in Public Health Service travel costs; and $208,364.28 in Department of Justice costs.
27. The total amount for which the parties have stipulated to the adequacy of documentation is $32,972,125.73.
28. The parties stipulate to the adequacy of documentation for $822,536.62 in EPA Region 8 payroll costs through December 31, 2001. Agreed Fact 72.
29. The parties stipulate to the adequacy of documentation for $251,440.77 in EPA Region 8 travel costs through December 31, 2001. Agreed Fact 74.
30. The parties stipulate to the adequacy of documentation for $95,336.17 in EPA headquarters payroll costs through December 31, 2001. Agreed Fact 73.
31. The parties stipulate to the adequacy of documentation for $44,976.41 in EPA headquarters travel costs through December 31, 2001. Agreed Fact 75.
32. The amounts in paragraphs 27 through 30 total $1,214,289.97.
33. Defendants do not dispute $1,372,000 in EPA indirect costs incurred at or related to the Libby Asbestos Site through December 31, 2001. Revised Agreed Fact 71.
34. The parties stipulate to the adequacy of documentation for $2,212,437.33 in costs incurred under the ...
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