ELR Citation: ELR 20460
No(s). s. 83-2259 et al (D.C. Cir. Apr 16, 1985)

The court upholds the Environmental Protection Agency's inclusion of sites at which mining wastes and power plant fly ash were disposed, as well as inactive uranium mills licensed by states, on the national priorities list (NPL) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court rules that mining wastes and fly ash are not precluded from listing as "hazardous substances" under CERCLA §101(14), notwithstanding the fact that they are excluded expressly from one of the other statutory lists of toxics incorporated in the CERCLA definition by reference. Section 101(14) incorporates, in subsection (C), the list of hazardous wastes compiled by EPA under §3001 of the Resource Conservation and Recovery Act (RCRA), "but not including any waste" whose regulation under RCRA has been suspended by Congress. RCRA regulation of mining wastes and fly ash was suspended by Congress pending completion of studies of their potential for harm. The court concludes that the plain language of §101(14) does not bar EPA from treating mining waste and fly ash as hazardous substances under CERCLA if they qualify on some basis other than the RCRA list, because the exclusion is found in subsection (C), which deals solely with the RCRA list. If Congress had intended a general exemption, it would have placed it at the end of the collection of other toxics lists incorporated by reference, where it placed a general exemption for petroleum products. While one sentence in the legislative history clearly supports contrary conclusion, where unambiguous statutory language conflicts with legislative history, the former controls, since that is what was enacted by the entire Congress and signed by the president. Moreover, the court reads the fragment of legislative history merely as creating doubt as to Congress' intent, in which case, the court must defer to EPA's reasonable interpretation. Since EPA's inclusion of mining wastes and fly ash is consistent with the statutory language and does not lead to an irrational result, it is reasonable. Petitioners argue that EPA may not use the fact that fly ash and mining wastes contain elements listed elsewhere as hazardous as a basis for NPL listing, since all fly ash and mining wastes contain at least traces of such elements; the subsection C exclusion would be thereby rendered meaningless. The court rejects this argument because petitioners' failure to cite any factual evidence on the content of mining waste and fly ash in support of their argument defeats it.

The court also upholds EPA's decision that it could list on the NPL sites containing mining waste ans fly ash because those wastes qualify as "pollutants and contaminants" under CERCLA §104(a)(2). The exclusion in §101(14)(C) does not apply to the rest of that section, much less to §104. The fact that EPA may not clean up a site from which pollutants and contaminants are released unless there is an imminent and substantial endangerment (a condition not imposed on sites leaking hazardous substances) does not bar listing the site on the NPL. Listing is not a decision to respond to releases at a site, but merely a statement that the site requires closer study. The court is persuaded by EPA's argument that it would not take action at a site involving pollutants or contaminants if its closer examination revealed that there was no imminent and substantial endangerment.

The court also upholds EPA's decision to include inactive uranium mill tailing facilities whose licensing under the Atomic Energy Act is done by states under agreement with the Nuclear Regulatory Commission (NRC). Nothing in CERCLA limits EPA's ability to list such sites, and EPA's inclusion of state-licensed sites, but not NRC-licensed sites, has a rational basis.

Counsel for Petitioners
G. Stanley Crout, Michael S. Yesley, Peter J. Nickles
Covington & Burling
1201 Pennsylvania Ave. NW, Washington DC 20044
(202) 662-6000

Ridgeway M. Hall Jr.
Crowell & Moring
1100 Connecticut Ave. NW, Washington DC 20036
(202) 452-5800

Daniel H. Squire
Wald, Harkrader & Ross
1300 19th St. NW, Washington DC 20036-1697
(202) 828-1200

William L. Rosbe
Hunton & Williams
2000 Pennsylvania Ave. NW, Washington DC 20036
(202) 955-1500

Counsel for the Respondents
Samuel I. Gutter
United States Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-4134

Lawrence R. Liebesman, Michael W. Steinberg
Department of Justice
Land and Natural Resources Division
P.O. Box 23986, Washington DC 20530
(202) 633-2281

Before: ROBINSON, Chief Judge, EDWARDS, and STARR, Circuit Judges.