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United States v. Union Gas Co.

ELR Citation: 14 ELR 20491
Nos. No. 83-2456, 586 F. Supp. 1522/21 ERC 1001/(E.D. Pa., 05/25/1984) "Hazardous substance" construed

The court rules that mining wastes exempted from regulation under the Resource Conservation and Recovery Act (RCRA) are covered by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) if they are listed under other statutes incorporated by reference in CERCLA's definition of "hazardous substance." The court holds that the mining waste exclusion in RCRA §3001(b)(3)(A)(iii), incorporated by reference in CERCLA §101(14)(C), does not apply to the other statutes referred to in §101(14). The language incorporating the exclusion is a parenthetical addition to the subsection dealing with inclusion of RCRA hazardous wastes, a subsection found in the middle of the list of other statutes. Had Congress intended to apply the exclusion across the board it would have placed it at the end of the entire list, as it did with a petroleum exemption. This reading of the plain language of the statute is confirmed by reference to RCRA's language and legislative history, which indicate that the exemption in RCRA did not preclude regulation of the exempted substances under other statutes then in force, such as the Federal Water Pollution Control Act. Concluding that this holding disposes of defendant's summary judgment motion, the court declines to rule on defendant's contention that coal tar produced in coal gasification, the substance in question, is a mining waste.

Counsel for Plaintiff
James G. Sheehan, Ass't U.S. Attorney
3310 U.S. Cthse., Philadelphia PA 19106
(215) 597-2556

Joseph J.C. Donovan
Office of the Regional Counsel
Environmental Protection Agency, 6th & Walnut Sts., Philadelphia PA 19106
(215) 597-9821

Counsel for Defendant
David H. Marion
Kohn, Savett, Marion & Graf
1214 IVB Bldg., 1700 Market St., Philadelphia PA 19103
(215) 665-9900

Ralph A. Metergia
Metergia & Dunn
700 Monroe St., P.O. Box 850, Stroudsburg PA 18360
(717) 421-7720