ELR Citation: ELR 20661
No(s). s. S-91-768 MLS, -1167 MLS (E.D. Cal. Jan 20, 1993)

The court, on reconsideration, reaffirms, its prior holding, reported at 23 ELR 20651, that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §101(14)(C) exempts certain mining wastes (Bevill wastes) from CERCLA's definition of "hazardous substance." The consolidated cost recovery actions, brought by the United States and California under CERCLA §107(a), concern the Iron Mountain Mine in Redding, California. The site was mined for 100 years, allegedly causing acid mine drainage that threatens the environment. The court first reviews its prior holding and notes it erroneously suggested that 40 C.F.R. §261.4(b)(7) is an exclusive list of Bevill wastes. In fact, the cited list includes only mineral processing wastes; the universe of Bevill wastes is much broader. The court reviews the standard of review for motions to reconsider under Fed. R. Civ. P. 59(e) and 60(b). Finding that the plaintiff's motions are untimely, the court rules that the plaintiff must rely on the court's plenary power to grant relief from an interlocutory order when the interests of justice so require. The court rules that reconsideration is justified.

Turning to the issue of whether CERCLA exempts Bevill wastes from its definition of "hazardous substance," the court holds that the plain language of CERCLA §101(14) is ambiguous and that legislative history should be consulted to aid interpretation. The court reviews the standard for consideration of postenactment legislative history under Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979). The court rejects plaintiff's arguments based on legislative history from the 1986 Superfund Amendments and Reauthorization Act (SARA), and holds that the 1980 legislative history of CERCLA clearly indicates Congress' intent when it enacted CERCLA §101(14)(C). The court holds that the 1980 legislative history compels a conclusion that Bevill wastes are excluded from regulation under CERCLA, reaffirming its prior ruling.

Counsel for Plaintiff
Michael Hingerty
EPA Region 9
Office of Regional Counsel
75 Hawthorne St., San Francisco CA 94105
(415) 744-1315

Counsel for Defendants
Bruce H. Jackson
Baker & McKenzie
Two Embarcadero Ctr., 24th Fl., San Francisco CA 94111
(415) 576-3000