United States v. W.R. Grace & Co.

No. CV 00-167-M-DWM (134 F. Supp. 2d 1182, 52 ERC 1245) (D. Mont. March 9, 2001)

ELR Digest

The court holds that the U.S. Environmental Protection Agency (EPA) should be granted access to three sites involved in an asbestos contamination investigation to determine the need for response, to determine the appropriate response, and to effectuate response actions. The owner of the sites granted access to one site for soil sampling and other investigatory activities, but it is unclear whether access was granted for entry to the other two sites. In talks concerning possible locations for disposal of the contaminated soil present at the sites, EPA discussed an arrangement whereby the owner would be released from liability and given a covenant not to sue in exchange for EPA's use of the site it had access to as a disposal site and a 25% share in any amounts realized by the owner in the properties' sale. The court first holds that the entry EPA seeks is authorized under Comprehensive Environmental Compensation, Response, and Liability Act § 104(e), the site owner obstructed EPA's right of entry, and EPA has a reasonable basis to believe that there may be a release or a threat of a release of a hazardous substance. The court then holds that the demand for entry is not arbitrary and capricious, or an abuse of discretion. EPA seeks entry to one site for use as a disposal site for waste generated from the cleanup of the three sites. The company's own selection of that site as a repository for contaminated soil from its own properties proves that EPA's selection of the site is not arbitrary and capricious or an abuse of discretion.

The full text of this decision is available from ELR (10 pp., ELR Order No. L-355).

Counsel for Plaintiff
Sherry S. Matteucci
U.S. Attorney's Office
Western Federal S&L Bldg.
2929 Third Ave. N., Ste. 400, Billings MT 59101
(406) 657-6101

Counsel for Defendant
Gary L. Graham
Garlington, Lohn & Robinson
199 W. Pine St., Missoula MT 59802
(406) 523-2500

[31 ELR 20559]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]