United States v. Metate Asbestos Corp., CIV-83-309-GLO-RMB.

• Citation: 584 F. Supp. 1143
• Decision Date: 10 April 1984
• Docket Number: No. CIV-83-309-GLO-RMB.,CIV-83-309-GLO-RMB.
• Parties: UNITED STATES of America, Plaintiff, v. METATE ASBESTOS CORPORATION, et al., Defendants.
• Court: U.S. District Court — District of Arizona

584 F. Supp. 1143

UNITED STATES of America, Plaintiff, v. METATE ASBESTOS CORPORATION, et al., Defendants.

No. CIV-83-309-GLO-RMB.

United States District Court, D. Arizona, Tucson Division.

April 10, 1984.

COPYRIGHT MATERIAL OMITTED

Kevin A. Gaynor, Environmental Enforcement Section, Land & Natural Resources Division, Dept. of Justice, Washington, D.C., for plaintiff.

Leonard N. Sowers, Kearny, Ariz., William H. Sandweg, Jill H. Grossman, Robbins & Green, Phoenix, Ariz., for defendants.

ORDER

BILBY, District Judge.

This is an action for injunctive relief and cost recovery under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601 et seq., the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., and the Clean Air Act, 42 U.S.C. §§ 7401 et seq. Plaintiff United States and defendants Jack and Geraldine Neal, Jacqueline F. Querns, D.W. Jaquays Mining and Contractors Equipment Co., and Jaquays Mining Corp. have filed cross-motions for partial summary judgment on certain issues underlying the CERCLA claims.

The United States has alleged that defendants are liable under CERCLA for the costs of cleaning up asbestos mine and mill wastes alleged to be present at the Mountain View Mobile Home Estates in Globe, Arizona. Defendant Metate Asbestos Corp., against which default was entered on December 2, 1983, formerly operated an asbestos mill on 10 acres of the site. Defendant Neal, Capper, Neal Land Development Corp., against which default also was entered, owned the other five acres of the subdivision. The two corporations, both of which are now defunct, developed the Mountain View subdivision and sold lots to the public there beginning in 1973. Defendants Jack and Geraldine Neal were stockholders in both corporations, and defendant Jacqueline Querns (formerly Jacqueline Capper) was a stockholder in Neal, Capper, Neal. Jaquays Mining operated an asbestos mill on property adjacent to Mountain View, and asbestos tailings are disposed of at that mill site.

CERCLA generally provides that persons defined as operators of hazardous waste facilities are liable for costs of removal or remedial action incurred by the United States in cleaning up those substances. See 42 U.S.C. § 9607(a). The government has moved for partial summary judgment that three elements of its claim under CERCLA have been established: that there was (1) a release or threatened release of (2) a hazardous substance at (3) a facility, the Mountain View Mobile Home Estates. See 42 U.S.C. § 9607(a). Defendants have filed a cross-motion for partial summary judgment that they are not liable under CERCLA as a matter of law because asbestos mine and mill wastes do not come within CERCLA's definition of "hazardous substance."

ASBESTOS TAILINGS AS A "HAZARDOUS SUBSTANCE"

The question of whether asbestos mine and mill wastes are regulated by CERCLA is one of first impression, which can be determined by analyzing the statutory definition of "hazardous substance" and reviewing the interpretations suggested by the government and by the defendants. The pertinent section of CERCLA is 42 U.S.C. § 9601(14), which defines "hazardous substance" as follows:

(14) "hazardous 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.A. § 6921 (but not including any waste the regulation of which under the Solid Waste Disposal Act 42 U.S.C.A. § 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.A. § 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);

Under the scheme set up by section 9601(14), a substance may be considered a "hazardous substance" if it falls within any one of six categories. Each category includes substances that are already regulated under another environmental act. Because asbestos is regulated under both 33 U.S.C. § 1317(a) (the Federal Water Pollution Control Act) and section 112 of the Clean Air Act, it is a hazardous substance under CERCLA. 42 U.S.C. § 9601(14)(D) and (E); 40 C.F.R. § 401.15 and 40 C.F.R. Part 61.

Defendants argue that, although asbestos is regulated under subsections (D) and (E) of section 9601(14), asbestos mine and mill wastes are exempt from CERCLA regulation by virtue of subsection (C). Subsection (C) provides for CERCLA regulation of substances listed under the Solid Waste Disposal Act "but not including any waste the regulation of which under the Solid Waste Disposal Act has been suspended by Act of Congress." Since the regulation of solid waste from the extraction and processing of ores and minerals has been suspended by Congress (pending a study by the Environmental Protection Agency), asbestos tailings clearly are excluded from subsection (C). See 42 U.S.C. § 6921(b)(3)(A). The question is whether that exclusion also operates as a complete exemption from CERCLA regulation for mine and mill wastes, including asbestos tailings. The defendants argue that it does. The government, on the other hand, argues that mine or mill wastes that also fall within any of the other five categories in section 9601(14)—as asbestos tailings do—are still regulated by CERCLA.

The Court finds that the government's interpretation of section 9601(14) is correct. When interpreting a statute, a court must begin with the plain language of the statute. American Tobacco Co. v. Patterson, 456 U.S. 63, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982). Unless there is a clearly expressed legislative intention to the contrary, the language ordinarily must be regarded as conclusive. Id.; Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). The plain language of section 9601(14) shows a clear intent to exempt mine and mill wastes only from subsection (C) and not from coverage from CERCLA by virtue of the other subsections.

One canon of statutory construction, the "doctrine of the last antecedent," bolsters this conclusion. That doctrine states that qualifying words, phrases and clauses must be applied to the words or phrase immediately preceding them and are not to be construed as extending to and including others more remote. First Charter Financial Corp. v. United States, 669 F.2d 1342, 1350 (9th Cir.1982); Azure v. Morton, 514 F.2d 897, 900 (9th Cir.1975). The Azure case is particularly instructive. There, the court applied the doctrine to a statute providing that a sum of money would be paid to:

all members of the Fort Belknap Community who were born on or prior to and are living on the date of this Act and (a) whose names appear on the February 5, 1937, payment roll of the Gros Ventre Tribe ..., or (b) who are descended from a person whose name appears on said roll, if such member possesses a greater degree of Gros Ventre blood than Assiniboine blood.

Id. The government had interpreted the statute to mean that both subsections (a) and (b) were limited by the last clause requiring a greater degree of Gros Ventre blood. The Ninth Circuit, however, held that the blood restriction was part of subsection (b) and did not apply to subsection (a) recipients.

In the instant case, the argument is even stronger that the limiting words should be restricted to the subsection in which they are found. The limitation is wholly within subsection (C), which is in the middle of a list of similar subsections, rather than at the end as in Azure. Therefore, it is less likely that the limitation within (C) was intended to apply to all the other subsections.

In addition, there is a general exclusion from CERCLA's "hazardous substance" definition for petroleum and natural gas, which is clearly stated in a separate sentence at the end of section 9601(14). If Congress had intended the exclusion in subsection (C) to apply as a complete exemption from CERCLA, it undoubtedly would have placed the exclusion with that for petroleum and natural gas.

Finally, the Court notes that the Solid Waste Disposal Act, in exempting mine and mill wastes from regulation pending a study, specifically states that "each waste listed below shall ... be subject only to regulation under other applicable provisions of Federal or State law in lieu of this subchapter ...." 42 U.S.C. § 6921(b)(3)(A). That indicates that Congress intended that mine and mill wastes still be regulated under other federal laws.

Because the statutory language is clear, it is not necessary to engage in a lengthy analysis of the legislative history and administrative interpretation of CERCLA, both of which issues were argued by the parties. After reviewing the sparse legislative history, the Court finds that it is inconclusive and does not indicate a clear intent to completely exclude mine and mill wastes from CERCLA regulation. See statement of Rep. Florio, 126 Cong.Rec. H11,789; S.Rep. No. 848, 96th Cong., 2d Sess. 28 (1980). Moreover, the most authoritative expression of Environmental Protection Agency policy is that mine and mill wastes should be considered hazardous substances under CERCLA if they meet any of the other criteria in section 9601(14). See Amendment...