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Wilshire Westwood Assocs. v. Atlantic Richfield Corp.

Citation: 19 ELR 21313
No. No. 88-5708, 881 F.2d 801/30 ERC 1065/(9th Cir., 08/07/1989)

The court rules that the petroleum exclusion in § 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) applies to leaded gasoline. CERCLA § 101(14)(F) excludes "petroleum, including crude oil and any fraction thereof not specifically listed as a hazardous substance" from the definition of hazardous substance. The plain language of the petroleum exclusion supports the court's interpretation. Although certain gasoline components and additives, including lead, are hazardous substances under CERCLA if released as part of chemical wastes, construing the petroleum exclusion not to include petroleum products containing these substances would render the exclusion a nullity. Under such a construction, all crude oil and all refined or unrefined petroleum and petroleum fractions would fall outside the exclusion. The court's interpretation is supported by Congress' failure to amend the petroleum exclusion when CERCLA was amended in 1986 even though the Environmental Protection Agency (EPA) had already clarified its interpretation of the exclusion to cover gasoline and other refined products and their components and additives. EPA's interpretation is entirely consistent with CERCLA's plain meaning and the legislative history, and is entitled to considerable deference.

Counsel for Plaintiffs-Appellants
Rene P. Tatro
333 Bush St., San Francisco CA 94104-2878
(415) 772-6000

Counsel for Defendants-Appellees
Patrick W. Dennis
444 S. Flower St., Fifth Fl., Los Angeles CA 90017
(213) 623-2322

Coyle* (before Reinhardt and O'Scannlain, JJ.):