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UNITED STATES v. UNION GAS CO.

May 25, 1984

UNITED STATES OF AMERICA
v.
UNION GAS COMPANY v. THE BOROUGH OF STROUDSBURG



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 This action was brought by the United States of America against Union Gas Company under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. and the Clean Water Act, 33 U.S.C. § 1251 et seq. The government seeks to recover funds it spent to clean up coal tar released by a predecessor of Union Gas from a facility located in Stroudsburg, Pennsylvania. Presently before the court is defendant Union Gas's motion for summary judgment on the CERCLA claim only, the government having withdrawn the Clean Water Act claim set forth in the original complaint at a hearing held in open court on April 13, 1984. For the reasons set forth below, the motion will be denied. *fn1"

 
"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);

 42 U.S.C. § 9601(14).

 Under the plain language of this subsection, a material is a hazardous substance if it comes within any of the listed statutory sections. The coal tar constituents acenaphthene, ethylbenzene, fluoranthene, phenanthrene and pyrene are listed as toxic pollutants under the regulation implementing section 307(a) of the Clean Water Act, 33 U.S.C. § 1317(a), 40 C.F.R. Part 401.15 (1983). Additionally, coal tar constituents napthalene and xylene are designated as hazardous substances under the regulation implementing section 311(b)(2)(A) of the Clean Water Act, 33 U.S.C. § 1321(b)(2)(A), 40 C.F.R. Part 116.4. It would thus appear that these materials are hazardous substances under CERCLA section 9601(14)(A) and (D).

 Defendant contends, however, that even though these seven coal tar constituents are within the categories subscribed by subsections (A) and (D) of CERCLA section 9601(14), they are nonetheless exempt from CERCLA's definition of hazardous waste under subsection (C) of section 9601(14). Subsection (C) states that the term hazardous substance includes:

 
any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of 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).

 42 U.S.C. § 9601(14)(C) (emphasis added). Defendant points to the following suspension in the Solid Waste Disposal Act, found at 42 U.S.C. § 6921(b)(3)(A):

 
Notwithstanding the provisions of paragraph (1) of this subsection, [which directs the Environmental Protection Agency to identify and list particular hazardous wastes] each waste listed below shall. . . be subject only to regulation under other applicable provisions of Federal or State law in lieu of this subchapter until at least six months after the date of submission of the applicable study . . .:
 
* * * *
 
(ii) Solid waste from the extraction, beneficiation, and processing of ores and minerals, including phosphate rock and overburden from the mining of uranium ore.

 In light of this suspension and considering CERCLA's parenthetical incorporation of it in subsection (C), 42 U.S.C. § 9601(14)(C), defendant makes this argument: first, that the coal tar at issue was produced during the gasification of coal and thus falls within the suspension for "solid waste from the . . . processing of ores and minerals;" and second, that this suspension not only restricts the definition of wastes that under subsection (C) are to be considered hazardous substances, it also applies broadly to all other subsections of section 9601(14). Thus, according to defendant, even though a substance might be designated as hazardous under the Clean ...


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