W.R. Grace Loses Toxic Cleanup Case

This undated file photo provided by the Lincoln County District Court shows the W.R. Grace vermiculite mine near Libby, Montana. W.R. Grace & Co. lost its bid to the Supreme Court Tuesday Oct. 10, 2006, to get out from under a $54 million bill to clean up asbestos in Libby. (AP/Lincoln County District Court) AP/Lincoln County District Court

W.R. Grace & Co. lost its bid to the Supreme Court to get out from under a $54 million bill to clean up asbestos in the Montana mining town of Libby on Tuesday. The court also turned down the case of a former guard at a Nazi slave camp suffering from Alzheimer's disease and opted not to take up an abortion question.

The case pits Grace, which operated a vermiculite mine in Libby for 27 years, against the Environmental Protection Agency, 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 eliminating asbestos-contaminated soil in Libby. 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 other 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, 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.

The case is W.R. Grace & Co., et al, v. U.S., 05-1363.

Also Tuesday in the Supreme Court:

  • The court refused to intervene in a legal fight over same-sex marriage, declining an appeal from a gay California couple who were denied a license to wed. The justices declined without comment to take the case of Arthur Smelt and Christopher Hammer of Mission Viejo, Calif. The men had sought a marriage license in 2004 and, after they were turned down, filed a federal lawsuit. A U.S. District judge said the federal Defense of Marriage Act was constitutional but declined to rule on the state ban because a separate legal challenge is making its way through California state courts. The 9th U.S. Circuit Court of Appeals agreed in May that the couple should await the outcome of the state court challenge.

  • Because the Supreme Court refused to hear an appeal, the Justice Department succeeded in revoking the U.S. citizenship of 86-year-old Iwan Mandycz. He could face deportation. His lawyers say the right that prevents the U.S. government from prosecuting a mentally incompetent person also should apply to citizenship cases, which are civil proceedings. "The accused should be able to assist in the preparation of his defense and consult with his attorneys before he may be punished by the government," Mandycz's lawyers said in a filing that had asked the Supreme Court to take the case. The Justice Department, which wants to remove him from the United States, initiated denaturalization proceedings, saying Mandycz had concealed that he worked for the Nazis.

  • Justices rejected a petition by a woman who wants to reverse her 33-year-old victory in one of the cases that legalized abortion. Sandra Cano says she never wanted an abortion, and that a difficult early life led to her petition in Doe v. Bolton. It was a lesser-known case that was addressed by the high court on the same day as Roe v. Wade. Cano claims an aggressive attorney pushed her into the abortion case when she was fighting marriage to an abusive husband and trying to regain custody of her children. Lower courts ruled they don't have the authority to reverse Supreme Court abortion decisions.

  • The court declined to hear an appeal by 30 states in a battle over payments by three small cigarette companies into accounts set up to help cover future damage awards in tobacco-related lawsuits. The justices' decision allows the companies to continue to fight state laws requiring payments to accounts set up as part of a $206 billion financial settlement eight years ago with the largest tobacco companies. Each of the 30 states had passed a law requiring companies that didn't participate in that settlement to pay into the escrow funds to help cover future damage awards.

  • Judges and prosecutors make mistakes, a Justice Department lawyer told the high court, but sometimes those errors are so minor that they don't warrant reversing a conviction in a criminal case. A jury convicted Juan Resendiz-Ponce of attempting to enter the United States illegally from Mexico. But the 9th Circuit U.S. Court of Appeals overturned Resendiz-Ponce's conviction because his indictment by a grand jury did not set out any specific acts showing how he tried to enter the United States. The omission was so serious that it required automatic reversal of the conviction, the appellate court said.

  • A political polling firm lost a challenge to a North Dakota law that bars telemarketers from making prerecorded interstate calls to the state's residents. The North Dakota Do-Not-Call law says callers cannot use robo-call machines unless a live operator first obtains the subscriber's consent before a prerecorded message is delivered. The Virginia-based political polling firm, FreeEats.com, argued that the North Dakota law is preempted by the federal Telephone Consumer Protection Act which allows prerecorded non-commercial calls. Justices declined to review a state Supreme Court ruling upholding the law.
    • Christine Lagorio

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