United States v. Iron Mountain Mines, Inc.

Nos. S-91-768 MLS, -1167 MLS (E.D. Cal. January 20, 1993)

The court, on reconsideration, reaffirms, its prior holding, reported at 23 ELR 20651, that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 101(14)(C) exempts certain mining wastes (Bevill wastes) from CERCLA's definition of "hazardous substance." The consolidated cost recovery actions, brought by the United States and California under CERCLA § 107(a), concern the Iron Mountain Mine in Redding, California. The site was mined for 100 years, allegedly causing acid mine drainage that threatens the environment. The court first reviews its prior holding and notes it erroneously suggested that 40 C.F.R. § 261.4(b)(7) is an exclusive list of Bevill wastes. In fact, the cited list includes only mineral processing wastes; the universe of Bevill wastes is much broader. The court reviews the standard of review for motions to reconsider under Fed. R. Civ. P. 59(e) and 60(b). Finding that the plaintiff's motions are untimely, the court rules that the plaintiff must rely on the court's plenary power to grant relief from an interlocutory order when the interests of justice so require. The court rules that reconsideration is justified.

Turning to the issue of whether CERCLA exempts Bevill wastes from its definition of "hazardous substance," the court holds that the plain language of CERCLA § 101(14) is ambiguous and that legislative history should be consulted to aid interpretation. The court reviews the standard for consideration of postenactment legislative history under Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979). The court rejects plaintiff's arguments based on legislative history from the 1986 Superfund Amendments and Reauthorization Act (SARA), and holds that the 1980 legislative history of CERCLA clearly indicates Congress' intent when it enacted CERCLA § 101(14)(C). The court holds that the 1980 legislative history compels a conclusion that Bevill wastes are excluded from regulation under CERCLA, reaffirming its prior ruling.

Counsel for Plaintiff
Michael Hingerty
EPA Region 9
Office of Regional Counsel
75 Hawthorne St., San Francisco CA 94105
(415) 744-1315

Counsel for Defendants
Bruce H. Jackson
Baker & McKenzie
Two Embarcadero Ctr., 24th Fl., San Francisco CA 94111
(415) 576-3000

[23 ELR 20661]

Schwartz, J.:

Memorandum and Order

On September 21, 1992, the court issued an order that in part dealt with the question whether mining wastes are excluded from the definition of hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601 et seq. The court concluded that some but not all mining wastes are excluded from CERCLA's definition of hazardous substances, excluded substances being those listed by the Environmental Protection Agency ("EPA") as Bevill Amendment wastes. See 42 U.S.C. § 9601(14); 42 U.S.C. § 6921(b)(3)(A).

Plaintiffs now move for reconsideration of that portion of the order covering the mining waste or Bevill Amendment exclusion. Plaintiffs' motion was heard on November 20, 1992, the following persons appearing: David B. Glaser on behalf of plaintiff United States, Lisa Trankley Sato on behalf of plaintiff State of California, and Paul B. Galvani on behalf of defendant Rhone-Poulenc Basic Chemicals Co. ("RP").

I. Factual and Procedural Background

These consolidated CERCLA cost recovery actions concern Iron Mountain Mine, a parcel of land northwest of Redding, California, that for 100 years was mined for iron, zinc, copper, silver, gold, and pyrite ores. According to plaintiffs, intensive mining has fractured the land, causing severe acid mine drainage ("AMD") that poses a threat to the environment. AMD, which consists of sulfuric acid, cadmium, copper, and zinc, poses a threat to fish who live in waterways below the mine.

On August 11, 1992, the court heard plaintiff United States' motion for partial summary judgment on defenses pled by defendants RP, Iron Mountain Mines, Inc., and T.W. Arman. Plaintiff State of California's motions to strike many of the same defenses were also heard on August 11. On September 21 the court issued an order disposing of plaintiffs' motions. In the portion of its order relevant to the present inquiry, the court denied plaintiffs' motions as to the part of RP's second defense that alleged that plaintiffs had stated no claim warranting relief because "mining wastes" are excluded from CERCLA's definition of hazardous substances. See United States v. Iron Mountain Mines, Inc., Civ. Nos. 8-91-768 MLS and 91-1167 MLS, [23 ELR 20662] Mem. Op. at 13-22 (Sept. 21, 1992). The court concluded that the plain meaning of section 101(14), which defines hazardous wastes, is that only hazardous wastes not excluded by the Bevill Amendment or by some other exclusion may be the basis of a CERCLA cost recovery action. Id. at 21. In so concluding, the court rejected the interpretation of section 101(14) found in Eagle-Picher Indus. v. United States E.P.A., 759 F.2d 922 [15 ELR 20460] (D.C. Cir. 1985).

The issue concerning the Bevill Amendment exclusion arises because a necessary predicate to liability for CERCLA response costs is the release or threatened release of a "hazardous substance" from a vessel, site, or facility. See 42 U.S.C. § 9607(a). The apparent purpose of RP's second defense is to establish that, because "mining wastes" are excluded from CERCLA's definition of hazardous substances, it may not be held liable for response costs. More precisely, RP alleges that plaintiffs have not stated a claim for which relief may be granted because without a release or threatened release of a hazardous substance there can be no response cost liability under CERCLA section 107.¹

Plaintiffs' motion for reconsideration rests on an erroneous suggestion made in the September 21 Memorandum and Order that 40 C.F.R. 261.4(b)(7) is an exclusive list of Bevill Amendment wastes. In fact, the cited list includes only mineral processing wastes and does not represent the universe of Bevill Amendment wastes, which is much broader. Bevill Amendment wastes include "solid wastes from the extraction, beneficiation, and processing of ores and minerals, including phosphate rock and overburden from the mining of uranium ore." 42 U.S.C. § 6921(b)(3)(A)(ii). Plaintiffs believe that the court's misunderstanding of the scope of the Bevill Amendment led it to discount their arguments concerning the subsequent legislative history of the Superfund Amendments and Reauthorization Act of 1986 ("SARA") and its effect on CERCLA section 101(14).

II. Standard of Review

A motion for reconsideration of an order denying summary judgment is appropriately brought under Federal Rule of Civil Procedure 59(e). Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985). Such motions must be served no later than 10 days after entry of judgment. Fed. R. Civ. P. 59(e). An untimely motion for reconsideration is construed as a motion based on Federal Rule of Civil Procedure 60(b). Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1463 n.35 [22 ELR 20391] (9th Cir. 1992). Rule 60(b) provides in relevant part that:

On motion and upon such terms as are just, the court may relieve a party . . . from a final . . . order . . . for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b) . . . or (6) any other reason justifying relief from the operation of the judgment.

Rule 60(b) motions are addressed to the court's discretion, the exercise of which may be guided by equitable principles. 11 C. Wright and A. Miller, Federal Practice and Procedure § 2857 at 157-58 (1973). But the Rule 60(b) procedure may not be used as a substitute for an appeal. McCarthy v. Mayo, 827 F.2d 1310, 1318 (9th Cir. 1987). While, ordinarily, a motion under Rule 60(b) may not be made unless the order to be reconsidered is a final ruling from which an appeal could have been taken, the court retains plenary power to afford relief from interlocutory orders and judgments "as justice requires" notwithstanding Rule 60(b). 7 Moore's Federal Practice § 60.20 at 60-170 (2d ed. 1992).

III. Analysis

A. Do Plaintiffs Meet the Standard for Reconsideration?

Plaintiffs rest their Motion on Local Rule 230(k), which describes the local procedure governing applications for reconsideration. Because the Local Rules are only intended to supplement the Federal Rules of Civil Procedure and "must be construed consistently with and subordinately to "the latter, see E. Dist. Local R. 100(b), plaintiffs, having sought reconsideration after expiration of the 10-day Rule 59(e) deadline, must satisfy the standards of Rule 60(b). Plaintiffs cannot proceed under Rule 60(b) because an order denying summary judgment is not a final and appealable order within the scope of the Rule. See 6 Moore's Federal Practice, § 54.40 at 54-247.

Plaintiffs must thus appeal to the court's plenary power to grant relief from an interlocutory order if the interests of justice so require. See Adv. Comm. Note to 1946 Amend. to Rule 60(b). In seeking reconsideration, plaintiffs allege that the court misunderstood the scope of the Bevill Amendment and therefore summarily rejected the argument that, notwithstanding the 1980 language of section 101(14), the 1986 legislative history of SARA demonstrates Congress' belief that wastes exempted by subdivision (C) (which cross-references the Bevill Amendment) can be "hazardous substances" under other subdivisions of section 101(14). In its September 21 Memorandum and Order, the court concluded that because the Bevill Amendment suspends regulation of only "special" mining wastes (i.e., those high in volume and low in toxicity), only such special wastes are exempt from regulation as hazardous substances. Thus the court did not deem significant Congress' alleged recognition in 1986 that CERCLA covered mining wastes generally: the court explained that Congress' ostensible 1986 intent was consistent with the limited exclusion enacted six years earlier, reasoning that in 1986 Congress simply acknowledged that some mining wastes — those not listed under the Bevill Amendment — were covered by CERCLA. See Iron Mountain Mines, Mem. Op. at 20-22.

Plaintiffs now note that EPA has listed so many wastes under the Bevill Amendment that section 101(14)(C) as construed by the court excludes most if not all mining wastes from CERCLA's hazardous wastes definition. Thus, say plaintiffs, Congress' 1986 impression that mining wastes can be hazardous substances makes no sense unless Congress also believed section 101(14)(C) was properly interpreted by Eagle-Picher and by EPA itself.

The court is persuaded that reconsideration is justified on the grounds suggested by plaintiffs. The court has also independently determined that the exclusion issue merits a second look. First, the issue is important to the cases. At oral argument on its summary judgment motion on August 11, 1992, the United States itself suggested that dismissal or judgment for defendants would necessarily follow a determination that mining wastes are excluded from the section 101(14) definition of hazardous wastes. Second, plaintiffs note that the parties seriously disagree about the import of the court's ruling on the Bevill Amendment exclusion and its implications for the future of the cases. In order to assure that its decision on the question is the best it can make, the court revisits the Bevill Amendment issue below.

B. Are Bevill Amendment Wastes Hazardous Substances Under CERCLA Section 101(14)?

Hazardous substances are defined at CERCLA section 101(14) as follows:

"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 1001 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).

42 U.S.C. § 9601(14) (emphasis added). The highlighted language purports to exclude, either wholly or in part, certain wastes from the definition of hazardous substances. Those wastes include certain mining wastes the regulation of which was suspended under the Solid [23 ELR 20663] Waste Disposal Act ("SWDA") in an amendment named for Rep. Bevill. See 42 U.S.C. § 6921(b)(3)(A).² Under the Bevill Amendment, which was enacted several months before enactment of CERCLA section 101(14), regulation of "solid wastes from the extraction, beneficiation, and processing of ores and minerals" was suspended under the SWDA until at least six months after EPA has completed a comprehensive study of the adverse effects of those wastes. 42 U.S.C. § 6921(b)(3)(A)(ii).

The parties hotly dispute the scope of CERCLA's Bevill Amendment exclusion. On the one hand, plaintiffs rely on the interpretation made in Eagle-Picher, which held that the section 101(14)(C) Bevill Amendment exclusion is limited to wastes defined by the SWDA alone. 759 F.2d at 928. Under Eagle-Picher, an excluded substance may nevertheless be an included, hazardous one if it or its components qualify as a hazardous substance under a provision of section 101(14) other than subdivision (C). On the other hand, RP has argued, and this court has agreed, that Eagle-Picher's interpretation is mistaken because it permits EPA to enter from other doors a room that subdivision (C) says may not be entered. The court also earlier concluded that Eagle-Picher's interpretation conflicts with the legislative history of section 101(14).

1. Plain Language of Section 101(14)(C)

In interpreting a statute, the court first looks to the language of the statute itself and then to its legislative history. Funbus Systems, Inc. v. California Pub. Util. Comm'n, 801 F.2d 1120, 1125-26 (9th Cir. 1986). But before it can reach legislative history, the court must conclude that the plain language of the statute is ambiguous. Hellon & Assoc., Inc. v. Phoenix Resort Corp., 958 F.2d 295, 297 (9th Cir. 1992). "A statute, clear and unambiguous on its face, need not and cannot be interpreted by a court and only statutes which are of doubtful meaning are subject to the process of statutory interpretation." 2A Sutherland, Statutory Construction § 45.02 at 5 (5th ed. 1992). Ambiguity exists when a statute is capable of being understood by reasonably well-informed persons in two or more different senses. Id. But, as Sutherland wisely comments, a finding of ambiguity is often merely "the judge's own uninstructed and unrationalized impression" of the statute's meaning. Id. The fact that a statute has been interpreted differently by different courts is evidence that the statute is ambiguous and unclear. Id. at 46.04.

Here, this court's reading of section 101(14) as announced in its September 21 Memorandum and Order notably differs from the readings of other courts. Compare Eagle-Picher, 759 F.2d at 928; United States v. Metate Asbestos Corp., 584 F. Supp. 1143, 1147 [14 ELR 20433] (D. Ariz. 1984); State of Idaho v. Hanna Mining Co., 699 F. Supp. 827, 833 [18 ELR 20360] (D. Id. 1987), aff'd on other grounds, 882 F.2d 392 [19 ELR 21358] (9th Cir. 1989), with Iron Mountain Mines, Civ. Nos. 8-91-768 MLS and 91-1167 MLS, Mem. Op. at 13-22 (Sept. 21, 1992). Others have reasonably recognized that section 101(14) is susceptible to different readings. See Memo. to W. Hedeman, Dir. of EPA Ofc. of Emergency and Remedial Response, from J. Freedman, Att'y for EPA Water and Solid Waste Div., re Recovery Under Superfund of Response Costs Expended in Response to Seepage From Abandoned Ore Mines, Jan. 11, 1982 ("1982 Freedman mem.") (discussing two possible interpretations of section 101(14)(C)); testimony of L. Thomas, Ass't Admin. of EPA, before House Subcomm. on Oversight and Investigation re Mining Waste Policy: Failure to Protect Public Health, May 2, 1983 ("1983 Mining Waste Subcomm. Rpt.") (noting "two possible legal interpretations of [section 101(14)]: one in which mining wastes are hazardous constituents, and one in which they are not"). This conflict supports the conclusion that section 101(14) is ambiguous so that legislative history should be consulted to aid interpretation.

In its prior ruling, although it considered a part of the legislative history, the court also noted "that a statute should be interpreted so as not to render one part inoperative." Iron Mountain Mines, Civ. Nos. 8-91-768 MLS and 91-1167 MLS, Mem. Op. at 20 (Sept. 21, 1992) quoting Mountain States Tel. & Tel. v. Pueblo of Santa Ana, 472 U.S. 237, 249 (1985). It remains a fundamental canon of statutory construction that "the unreasonableness of the result produced by one among alternative possible interpretations of a statute is reason for rejecting that interpretation in favor of another which would produce a reasonable result." 2A Sutherland, Statutory Construction § 45.12 at 61; see also Beisler v. Comm'r of Internal Revenue, 814 F.2d 1304, 1307 (9th Cir. 1987). If a reading of section 101(14)(C) leads to an unreasonable conclusion, the court should disregard that conclusion in favor of a reasonable interpretation regardless of ambiguity or legislative history.

RP argues that plaintiffs' interpretation of section 101(14) would render the Bevill Amendment exclusion inoperative because virtually all Bevill Amendment wastes are otherwise hazardous. RP has offered substantial evidence to support its assertion that all Bevill Amendment wastes are otherwise hazardous. See, e.g., 1983 Mining Waste Subcomm. Rep. ("most, if not all, mining wastes contain constituents which are considered hazardous under other statutes and may, therefore, be considered hazardous under CERCLA"); 1982 Freedman mem. at 4-5 ("most (if not all) wastes whose regulation have suspended under [SWDA] contain constituents which are identified as toxic under the other statutes enumerated in section 101(14)"). In response, plaintiffs cite only one waste excluded by subdivision (C) that might not be regulable under other subdivisions: solid waste containing barium. Absent evidence that exempt wastes exist that cannot be elsewhere regulated, the Bevill Amendment exclusion indeed seems to be superfluous and a nullity, as RP argues.

The deficiency in RP's argument is that it asks the court to deem EPA's interpretation of subdivision (C) unreasonable in light of events that occurred after the provision was enacted, namely, EPA's listing of certain substances as Bevill Amendment wastes. Only after listing of wastes has it become apparent that, at most, one waste exists that is regulated solely under SWDA. Accordingly, it cannot be said that plaintiffs' reading of section 101(14) would have rendered the Bevill Amendment exclusion inoperative at the time the exclusion was enacted. The court cannot fairly deem an interpretation unreasonable when the circumstances that render that interpretation unreasonable occurred after enactment of the relevant provision. For that reason, it is necessary to consider the legislative history in order to determine the meaning and scope of the section 101(14)(C) exclusion.

2. Legislative History

Plaintiffs argue that when Congress enacted SARA in 1986 it explicitly and implicitly ratified Eagle-Picher's and EPA's interpretation of section 101(14)(C). They contend that the 1980 legislative history of CERCLA — the year in which section 101(14) was adopted — is unclear. Thus, plaintiffs conclude that statements made in the 1986 legislative history of SARA — which amended CERCLA but not section 101(14) — control interpretation of section 101(14)(C). Plaintiffs argue alternatively that the 1980 CERCLA legislative history, if controlling, does not support RP's proposition that mining wastes exempted from section 101(14)(C) may not be regulated under other subdivisions of section 101(14).

RP answers that, because the intent of the enacting Congress controls, historical analysis must rest on Congress' intent in 1980 when it enacted section 101(14)(C). RP asserts that the 1980 Congress clearly intended that mining wastes exempted under section 101(14)(C) not be regulated under other subdivisions of section 101(14). RP argues alternatively that, if the 1986 intent controls, the legislative history of SARA does not support plaintiffs' contention that Congress ratified Eagle-Picher's and EPA's interpretation of section 101(14)(C)

Before it can assess the legislative history, the court must first determine whether Congress' 1980 intent or 1986 intent controls — assuming that they differ. In Oscar Mayer & Co. v. Evans, 441 U.S. 750, 759 (1979), the Supreme Court held that evidence of the intent of a post-enactment Congress is insufficient to overcome clear and convincing evidence that the enacting Congress had a contrary intent, noting that "the intent of the Congress that enacted the [provision] controls" and that subsequent "legislative observations are in no sense part of the legislative history" of the statute. Also see Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 117-18 (1980) ("views of a subsequent Congress form an extremely hazardous basis for inferring the intent of an earlier [23 ELR 20664] one"). In both the cited cases, the court gave little or no weight to congressional interpretation of an act when that interpretation accompanied an amendment to the act in question. Also see Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 354 n.39 (1977) ("views of members of a later Congress, concerning different sections of Title VII . . . are entitled to little if any weight").

On the other hand, Oscar Mayer implies that post-enactment legislative history may assist interpretation of a statute if pre-enactment history does not provide clear and convincing evidence of congressional intent. Consistent with that implication, the Ninth Circuit Court of Appeals has held that, in light of CERCLA's sparse legislative history, the legislative history of SARA may shed light on CERCLA. Wilshire Westwood Assocs. v. Atlantic Richfield Corp., 881 F.2d 801, 806 [19 ELR 21313] (9th Cir. 1989); also see Dedham Water Co. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1081 [17 ELR 20223] (1st Cir. 1986) (given "aura of uncertainty" surrounding CERCLA history, proper to rely on SARA history to interpret CERCLA). Moreover, in GTE Sylvania, the Supreme Court itself considered post-enactment history, but concluded that the history was not persuasive of the point for which it was offered. See 447 U.S. at 119; also see Montana Wilderness Ass'n v. United States Forest Serv., 655 F.2d 951, 957 [11 ELR 20521] (9th Cir. 1981) (post-enactment history is persuasive where (1) contemporaneous history is ambiguous and (2) the later Congress "carefully considered the issue"), cert. denied, 455 U.S. 989 (1982).

The above cases show that, while the legislative history of the enacting Congress' intent is generally entitled to controlling weight, subsequent legislative history may be entitled to some weight, depending on clarity of the enacting Congress' intent and persuasiveness of the subsequent history. Accordingly, this court's first task is to ask whether the 1980 legislative history of CERCLA clearly indicates Congress' intent at the time section 101(14) was enacted. If so, there is no need to consider the 1986 legislative history of SARA.

Plaintiffs argue that the 1980 CERCLA legislative history does not support RP's view that hazardous constituents of mining wastes exempted under subdivision (C) of section 101(14) may not be regulated as hazardous substances under other subdivisions of section 101(14). Plaintiffs acknowledge that the following 1980 statement concerning CERCLA's definition of hazardous substances appears to contravene their position:

It should be noted that any substance or material for which regulation is specifically suspended by Act of Congress under the [SWDA] is excluded from designation as a hazardous substance for the purpose of S.1480 [the Senate version of CERCLA], notwithstanding the presence in such substance of any hazardous or toxic chemical.

Thus drilling muds and brines, which will have been excluded from regulation by the 1980 amendments to section 3001 of [SWDA], are not hazardous substances under S.1480.

S. Rep. No. 96-845, 96th Cong., 2d Sess. at 28 (Jul. 11, 1980) (Senate Committee on Environment and Public Works). Plaintiffs attempt to harmonize this passage, which the court cited in its September 21 ruling, with their interpretation of section 101(14)(C): they argue that the Committee meant that a waste which would be a hazardous substance under SWDA alone would not be a hazardous substance under section 101(14)(C) if regulation of that waste had been suspended by the Bevill Amendment. Plaintiffs say the passage is thus consistent with the conclusion that a waste or constituent may be a hazardous substance under other subdivisions of section 101(14) if the substance or constituent is designated as hazardous under other federal statutes, notwithstanding the SWDA exclusion.

Plaintiffs cite other portions of the Senate Committee Report to support their argument. Before the quoted passage, but in the same section concerning CERCLA's definition of hazardous substances, the Committee reported that:

substances listed as hazardous or toxic under certain other Federal laws are incorporated by reference and upon the date of enactment of this bill such substances become statutorily defined as hazardous substances for purposes of this bill. And the release of any of them or any constituent of them invokes the . . . response provisions and any costs of removal or remedial action or any damages are subject to the liability provisions of the bill. . . .

Id. at 24. The Report then lists substances deemed hazardous under the Clean Water Act, stating that "[EPA] regulations must be referred to to determine the hazardous wastes and their constituents which are hazardous substances for purposes of S.1480. Any material listed as a hazardous waste or a hazardous constituent is a hazardous substance for purposes of S.1480. . . ." Id. at 28.

Plaintiffs also note that the Senate had mining sites in mind when it passed S.1480. Plaintiffs cite floor debate in which Sen. Hart asked Sen. Stafford whether radium mining sites would be covered by section 101(14) of the bill. Sen. Stafford answered, "if the radium sites do not otherwise come within section 170 of the Atomic Energy Act, and are not specified under the Uranium Mill Tailings Act, they will be eligible for funding and remedial action, subject to other conditions of the bill." 126 Cong. Rec. S14767 (Nov. 20, 1980). Before passage of H.R. 7020, the House version of CERCLA, Rep. Schroeder also asked whether radium tailings would be covered by section 101(14). Rep. Florio answered, "if any one of the materials are covered under [RCRA] they would be eligible for funding." 126 Cong. Rec. H9436 (Sept. 23, 1980). For two reasons, these statements do not establish the proposition for which they are offered. First, mining sites and mining wastes are not coterminous. Section 101(14) does not define hazardous substances by reference to the places in which such substances may be found, but rather defines them by reference to statutes defining the substances themselves. Second, both statements acknowledge that coverage is conditioned on the terms of the relevant legislation, be it CERCLA or RCRA (as amended by the SWDA Amendments).

Finally, plaintiffs cite the 1980 legislative history of the Bevill Amendment itself to support their reading of the 1980 legislative history of CERCLA section 101(14). In offering his amendment during debate on the SWDA Amendments, Rep. Bevill stated that:

numerous existing Federal and State programs under regulatory authorities other than RCRA, assure that the disposal of [Bevill wastes] will not go unregulated. . . . [W]hile this amendment will place a moratorium on regulation of these wastes under RCRA, it cannot be said that it would allow unregulated use of a potentially dangerous material. It will not exempt disposal of these materials from regulatory programs under these other statutes.

136 Cong. Rec. 3361-62 (Feb. 20, 1980). Plaintiffs thus argue that the legislative history of both CERCLA and the SWDA Amendments support the conclusion that Bevill-exempt wastes may nevertheless be regulated as hazardous substances under other subdivisions of section 101(14).

RP answers that the history of neither statute supports plaintiffs' view. RP points out that the quoted comments from page 24 of the Senate Committee Report on CERCLA precede the page 28 caveat that subdivision (C) exempts certain substances from coverage notwithstanding the presence in such substance of any hazardous or toxic chemical. Thus, says RP, the quoted comments confirm that the 1980 Congress, while it knew that wastes excluded by subdivision (C) had hazardous constituents, chose to exclude those wastes from section 101(14) despite the hazards. RP also notes that the quoted Bevill Amendment history merely means that regulation of wastes under federal statutes other than CERCLA would continue while Bevill Amendment wastes were excluded under RCRA.

RP's interpretation of the 1980 history is more plausible than plaintiffs' reading, which stretches the meaning of the Committee's language. In the page 28 passage concerning the subdivision (C) exclusion, the Committee plainly states that Bevill-exempted wastes would not be CERCLA hazardous substances notwithstanding the presence in these wastes of hazardous or toxic chemicals. The statement does not invalidate plaintiffs' position because, as plaintiffs argue, it is possible to harmonize the passage with the idea that only wastes regulable solely under SWDA are excluded. But the statement does not establish that plaintiffs are correct. Fatal to plaintiffs' position is the complete absence of support in the 1980 record for their argument that only wastes unique to SWDA are excluded. The page 24 passage concerning section 101(14)'s incorporation of other environmental [23 ELR 20665] statutes by reference merely describes operation of the hazardous substances definition and does not support plaintiffs' limitation of the subdivision (C) exclusion. As RP notes, the passage also precedes the Committee's recognition on page 28 that excluded Bevill wastes may not be regulated under section 101(14) despite the presence in those wastes of otherwise hazardous or toxic chemicals. Finally, floor debate on the Bevill Amendment sheds no light on the intention underlying section 101(14) because enactment of the former predated enactment of the latter by nearly a year. Rep. Bevill's comments, made on February 20, 1980, also precede the relevant passage from the Senate Committee Report on CERCLA, issued on July 11, 1980.

The Committee's statement that excluded substances may not be regulated although hazardous or toxic supports RP's arguments that Bevill Amendment wastes are excluded from the hazardous substances definition. Also see, e.g., Freedman mem. at 5 ("Superfund legislative history tends to support the conclusion that RCRA-suspended wastes may never be considered 'hazardous substances'"). The passage states that a substance under the Bevill Amendment is "excluded from designation as a hazardous substance . . . notwithstanding the presence in such substance of any hazardous or toxic chemical." In this court's view, the quoted language from the Committee Report is sufficiently clear and convincing that subsequent history need not and may not be consulted. See GTE Sylvania, 447 U.S. at 118 n.13 ("even where it would otherwise be useful, subsequent legislative history will rarely override reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment"). The language compels a conclusion that Bevill Amendment wastes are excluded from regulation under CERCLA although they may contain constituents that are hazardous within the meaning of some other federal statute.

Having so concluded, the court may not consider plaintiffs' arguments concerning the 1986 SARA legislative history. See Oscar Mayer, 441 U.S. at 759. Nor may the court consider whether to defer to EPA's subsequent interpretation of subdivision (C); agency interpretation cannot override the clearly-expressed intent of the enacting Congress. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 [14 ELR 20507] (1984), reh'g den., 468 U.S. 1227 (1984).

IV. Conclusion

Because reconsideration is appropriate in the interests of justice, plaintiffs' motion for reconsideration is GRANTED.

But, having reconsidered the question that is the subject of plaintiffs' motion, the court again concludes that the 1980 legislative history dictates exclusion of Bevill Amendment wastes from regulation as hazardous substances within the meaning of section 101(14).

In light of the court's conclusion regarding section 101(14), plaintiffs' motions for summary judgment on, and/or to strike, the part of RP's second defense concerning exclusion of mining wastes are again DENIED.

IT IS SO ORDERED.

1. The parties have not raised the question, which remains undecided, whether AMD, the waste that is the basis of these lawsuits, is a hazardous waste within the meaning of section 101(14) or a waste listed under the Bevill Amendment.

2. The SWDA was amended by both the Resource Conservation and Recovery Act of 1976 (RCRA) and by the Solid Waste Disposal Act Amendments of 1980. The latter Amendments included the provision known as the Bevill Amendment.