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United States v. Metate Asbestos Corp.

Citation: 14 ELR 20433
No. No. CIV-83-309-GLO-RMB, 584 F. Supp. 1143/20 ERC 1953/(D. Ariz., 04/10/1984)

The court rules that mining wastes are hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) if they qualify as hazardous under one of the statutes, other than the Resource Conservation and Recovery Act (RCRA), incorporated by reference into the CERCLA definition of "hazardous substaces." The court rules that asbestos mine and mill wastes are hazardous substances under CERCLA § 101(14), because asbestos is regulated as hazardous under § 307 of the Federal Water Pollution Control Act and § 112 of the Clean Air Act, both of which are referred to in § 101(14) of CERCLA. The exclusion in CERCLA § 101(14)(C) of "any waste the regulation of which under the Solid Waste Disposal Act [including RCRA] has been suspended by Act of Congress," a category including mining wastes, does not benefit defendants, because that exclusion applies only to materials listed solely under RCRA. The plain language of the statute dictates this result. The exclusion is placed in subsection (C), which deals solely with RCRA. The canon of statutory construction that qualifying words are applied only to the passage immediately preceding them and the fact that Congress placed a general exemption at the end of § 101(14) support the limited reading of the exclusion. Furthermore, the mining waste exemption in RCRA indicates that such wastes would continue to be regulated under other federal laws. The legislative history does not contradict this reading of § 101(14). Moreover, this reading is consistent with prior administrative interpretations. The court also holds that the category of asbestos at issue, chrysotile asbestos, is a hazardous substance under CERCLA § 101(14) because it is expressly listed as hazardous in regulations implementing § 112 of the Clean Air Act.

The court next rules that the mobiel home park built by defendants on the site of their asbestos mining and milling operation is a "facility" under CERCLA § 101(9). Affidavits in the case indicate that asbestos, a hazardous substance, has been placed or otherwise come to be located at the site, which is all CERCLA requires to make a site a facility. Finally, the court rules that there is a threat of a release of hazardous substances at the site, triggering the liability provisions of CERCLA § 107. Affidavits indicate that asbestos fibers on the ground could be made airborne in a light wind, and that there has been at least one release of asbestos fibers from a tailings pile at a neighboring site.

Counsel for Plaintiff
Kevin A. Gaynor
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4169

Don Overall, Ass't U.S. Attorney
P.O. Box 1951, Tucson AZ 85702
(602) 629-6511

Counsel for Defendants
William H. Sandweg
Robins & Green
1800 United Bank Plaza, 3300 N. Central Ave., Phoenix AZ 85012
(602) 248-7999