759 F.2d 922 (D.C. Cir. 1985), 83-2259, Eagle-Picher Industries, Inc. v. United States E.P.A.

Docket Nº:83-2259 to 83-2266.
Citation:759 F.2d 922
Party Name:Envtl. EAGLE-PICHER INDUSTRIES, INC., Petitioner, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents, State of Maine, et al., State of New Jersey, et al., Commonwealth of Virginia, State of New Mexico, et al., St. Joe Minerals Corporation, Edison Electric Institute, et al., Intervenors. UNITED NUCLEAR CORPORATION, Petitioner, v.
Case Date:April 16, 1985
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
FREE EXCERPT

Page 922

759 F.2d 922 (D.C. Cir. 1985)

Envtl.

EAGLE-PICHER INDUSTRIES, INC., Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents,

State of Maine, et al., State of New Jersey, et al.,

Commonwealth of Virginia, State of New Mexico, et

al., St. Joe Minerals Corporation,

Edison Electric Institute, et

al., Intervenors.

UNITED NUCLEAR CORPORATION, Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,

Edison Electric Institute, et al., Intervenors.

HOMESTAKE MINING COMPANY, Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,

Edison Electric Institute, et al., Intervenors.

HOMESTAKE MINING COMPANY, Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,

Edison Electric Institute, et al., Intervenors.

COTTER CORPORATION, Petitioner,

v.

William D. RUCKELSHAUS, et al., Respondents,

Edison Electric Institute, et al., Intervenors.

INMONT CORPORATION, Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents.

SOLVENTS RECOVERY SERVICE OF NEW ENGLAND, INC., Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.

VIRGINIA ELECTRIC AND POWER COMPANY, Petitioner,

v.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Respondents,

Edison Electric Institute, et al., Intervenors.

Nos. 83-2259 to 83-2266.

United States Court of Appeals, District of Columbia Circuit

April 16, 1985

Argued Jan. 28, 1985.

Page 923

[Copyrighted Material Omitted]

Page 924

Petitions for Review of an Order of the Environmental Protection agency.

Richard A. Flye, Washington, D.C., with whom Christian Volz, Washington, D.C., was on brief for petitioner, Eagle-Picher Industries, Inc., in No. 83-2259 and the joint brief for petitioners on Common Issues in Nos. 83-2259, et al.

G. Stanley Crout, Santa Fe, N.M., with whom Michael S. Yesley, Santa Fe, N.M., and Peter J. Nickles, Washington, D.C., were on brief for petitioner, United Nuclear Corporation, in No. 83-2260 and the joint brief for petitioners on Common Issues in Nos. 83-2259, et al. Mr. Crout also entered an appearance for petitioner, Homestake Mining Company, in Nos. 83-2261 and 83-2262.

Page 925

Ridgeway M. Hall, Jr., Washington, D.C., for petitioner, Homestake Mining Company, in Nos. 83-2261 and 83-2262. Ridgeway M. Hall, Jr., Washington, D.C., was also on joint brief for petitioners on Common Issues in Nos. 83-2259, et al. and brief for petitioner, Homestake Mining Company, on Issues Specific to Whitewood Creek, South Dakota.

Daniel J. Dunn, Denver, Colo., with whom Edward J. McGrath, was on the joint brief on Common Issues for petitioner, Cotter Corporation, in Nos. 83-2259, et al. Daniel J. Dunn, Denver, Colo., and Edward J. McGrath also entered appearances for petitioner, Cotter Corporation, in No. 83-2263.

Daniel H. Squire, Washington, D.C., with whom David B. Weinberg, Washington, D.C., was on brief for petitioner, Inmont Corporation, in No. 83-2264 and intervenors, Edison Electric Institute, et al. in Nos. 83-2259, 83-2260, 83-2261, 83-2262, 83-2263 and 83-2266.

Barry L. Malter, Washington, D.C., was on the brief for petitioner, Solvents Recovery Service of New England, Inc., in No. 83-2265.

William L. Rosbe, Richmond, Va., for petitioner, Virginia Electric and Power Company, in No. 83-2266.

Samuel I. Gutter, Atty., Environmental Protection Agency, Lawrence R. Liebesman and Michael W. Steinberg, Attys., Dept. of Justice, Washington, D.C., with whom Todd E. Gulick, Attorney and A. James Barnes, Gen. Counsel, Environmental Protection Agency, Washington, D.C., were on brief, for respondents in Nos. 83-2259, et al. David T. Buente, Washington, D.C., entered an appearance for respondent, Dept. of Justice, in Nos. 83-2259, et al.

James T. Kilbreth, III, Washington, D.C., was on brief for intervenors, State of Maine, et al., in No. 83-2259.

Patrick A. O'Hare, Richmond, Va., was on brief for intervenor, Commonwealth of Virginia in No. 83-2259.

Charlotte Uram, Santa Fe, N.M., was on brief for intervenors, State of New Mexico, et al., in No. 83-2259.

Everett B. Carson, Augusta, Maine, was on brief for Natural Resources Council of Maine, amicus curiae, urging dismissal in Nos. 83-2259, et al.

Mary C. Jacobson, Trenton, N.J., entered an appearance for intervenors, State of New Jersey, et al., in No. 83-2259.

Robert A. Emmett, Washington, D.C., was on brief for intervenor, St. Joe Minerals Corporation, in No. 83-2259.

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

Opinion for the Court filed by Circuit Judge STARR.

STARR, Circuit Judge:

This case calls on us to examine the complex web of "Superfund" legislation passed by Congress in the waning days of 1980. Specifically, we are presented with contentions pressed by certain mining companies and an electric utility that their facilities were improperly included by the Environmental Protection Agency on a nationwide list of priority sites under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Secs. 9601 et seq. (1982) ("CERCLA" or "the Act").

I

CERCLA was designed to address the growing problem of inactive hazardous waste sites throughout the United States. The Act authorizes the Environmental Protection Agency ("EPA") to respond to the release of both "hazardous substances" and those "pollutants or contaminants" the release of which may present "an imminent and substantial danger to the public health or welfare," as those terms are defined in the Act. A response by EPA can be of two kinds: removal, or remedial action. Removal actions involve the actual cleanup of a release, 42 U.S.C. Sec. 9601(23). Remedial actions are those actions consistent with a

Page 926

permanent remedy to prevent or minimize the release of hazardous substances. Id. Sec. 9601(24). 1

To enable EPA to respond to those sites most urgently in need of cleanup, EPA is required under section 105(8)(B), 42 U.S.C. Sec. 9605(8)(B), to compile the National Priorities List ("NPL") of releases or threatened releases throughout the United States. The petitioners in these consolidated cases object to the placement of their respective facilities on the NPL and advance various arguments as to why the EPA's actions were purportedly in error. This opinion addresses the contentions of petitioners Eagle-Picher Industries, Inc., Homestake Mining Company, United Nuclear Corporation, Cotter Corporation, and Virginia Electric and Power Company (Vepco) that CERCLA was not intended to authorize EPA to place sites that produce mining wastes or fly ash on the NPL. 2 We will also address the claims by three petitioners, Homestake Mining Corporation, United Nuclear Corporation, and Cotter Corporation, that the EPA cannot lawfully place sites on the NPL that are currently regulated by their respective States pursuant to agreements with the Nuclear Regulatory Commission. 3 For the reasons that follow, we deny the petitions for review as to the specific contentions addressed herein.

II

Petitioners first claim that mining wastes and fly ash are not "hazardous substances" within the meaning of CERCLA. 4 The pivotal term, "hazardous substance," is defined rather elaborately in section 101(14) of the Act, 42 U.S.C. Sec. 9601(14):

"[H]azardous substance" means (A) any substance designated pursuant to section 1321(b)(2)(A) of title 33, (B) any element, compound, mixture, solution, or substance designated pursuant to section 9602 of this title, (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act [42 U.S.C. 6921] (but not including any waste the regulation of which under the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.] has been suspended by Act of Congress), (D) any toxic pollutant listed under section 1317(a) of title 33, (E) any hazardous air pollutant listed under section 112 of the Clean Air Act [42 U.S.C. 7412], and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 2606 of title 15. The term does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of this paragraph, and the term does not include natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas)....

Petitioners ground their claim on the parenthetical clause found in subclause (C) of this complex provision, which expressly refers

Page 927

for its definitional purposes to several other federal statutes. That parenthetical clause applies by its terms to petitioners, inasmuch as both mining wastes and fly ash have been suspended from regulation under the Solid Waste Disposal Act (which includes the subsequently passed statute known as "RCRA"). See 42 U.S.C. Secs. 6921(3)(A)(i), 6921(3)(A)(ii) (1982). From this exclusion, petitioners draw the conclusion that mining wastes and fly ash are thus excluded as well from CERCLA's definition of "hazardous substances."

A

Notwithstanding its superficial appeal, petitioners' argument suffers from a mortal flaw, namely that their interpretation does not comport with the plain meaning of the entire statutory provision. As EPA notes, 5 a substance is a "hazardous substance" within the meaning of CERCLA if it qualifies under any of the several subparagraphs of section 101(14). The exception for mining wastes and fly ash is...

To continue reading

FREE SIGN UP