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Issue

Volume 25, Issue 5 — May 1995

Articles

A Practical Guide to Writing Environmental Disclosures

by E. Donald Elliott, Matt T. Morley and Harvey L. Pitt

Editors' Summary: An information-sharing arrangement with the U.S. Environmental Protection Agency gives teeth to the Securities and Exchange Commission's warning that companies that do not satisfy environmental disclosure requirements will be subject to enforcement actions. This Article provides companies a framework from which they can develop a strategy to meet those requirements. After briefly reviewing the relevant law, regulations, and guidance in this area, the authors offer insight into crafting and executing an effective environmental disclosure strategy.

Comment(s)

EPA's Continuing Jurisdiction Regulation: A Response to The Mixture Rule and the Environmental Code

by James E. Satterfield

Can listed hazardous waste escape the requirements of Subtitle C1 of the Resource Conservation and Recovery Act (RCRA),2 without being delisted, simply by being mixed with other material? Under the mixture rule that the U.S. Environmental Protection Agency (EPA) issued in 1980,3 the answer is no. But the U.S. Court of Appeals for the District of Columbia invalidated the mixture rule in Shell Oil Co. v. U.S. Environmental Protection Agency,4 and the U.S. Court of Appeals for the Eighth Circuit held that Shell Oil applies retroactively.5 Although EPA reissued the mixture rule in 1992,6 and the D.C. Circuit upheld the reissued rule,7 the question remains: Were listed hazardous waste mixtures created before 1992 subject to Subtitle C?

In their Dialogue, Rebuttal: The Mixture Rule and the Environmental Code,8 Van Carson, Philip Schillawski, and Mark Shere argue that Subtitle C does not apply to these mixtures. In response to the Comment EPA's Mixture Rule: Why the Fuss?,9 which appeared in the December 1994 issue of ELR — The Environmental Law Reporter, they say that EPA cannot, based on unwritten principles, require that such mixtures be managed as hazardous waste. To subject such mixtures to Subtitle C, they say, would require the management of material that is not dangerous.

Dialogue

Rebuttal: The Mixture Rule and the Environmental Code

by Van Carson, Philip Schillawski, and Mark Shere

The U.S. Environmental Protection Agency's (EPA's) "mixture rule for hazardous waste was vacated by the U.S. Court of Appeals for the D.C. Circuit in Shell Oil Co. v. U.S. Environmental Protection Agency.1 The case took 12 years to litigate. The organizations involved in the litigation included EPA, environmental groups, and a large portion of American industry. Throughout the litigation, these diverse groups agreed on one thing — that the mixture rule has significant consequences for whether waste mixtures are considered legally "hazardous."2

In his recent Comment, EPA's Mixture Rule: Why the Fuss?,3 and in his response to this rebuttal in this issue,4 James Satterfield argues that the Shell Oil decision and the mixture rule mean nothing in practical terms. According to Satterfield, the decision was irrelevant because it vacated only the written rule. The case did not touch the unwritten mixture "principle." Satterfield argues that under this principle, every waste and waste mixture that was considered hazardous before the Shell Oil decision is still considered hazardous today. Satterfield claims that this unwritten principle is a "light" to "guide[] the legal traveller through even the darkest tunnel of regulatory analysis."5

Attorneys Fees Awards Under RCRA §7002(e): The Corporate "Prevailing Party"

by Janet S. Kole

None of the citizen suit provisions of federal environmental laws bars a prevailing, for-profit corporate litigant from obtaining attorneys fees awards under those statutes' fee-shifting mechanisms. This is true even when a corporation brings the action to vindicate its own pecuniary interests rather than to benefit the public. In FallowfieldDevelopment Corp. v. Strunk,1 however, a district court denied attorneys fees to prevailing corporate plaintiffs in a citizen suit under the Resource Conservation and Recovery Act CRCRA).2 The court held that only nonprofit citizen groups suing under RCRA § 7002(a)(1)(B)3 may recover attorneys fees under § 7002(e)4 for acting as "private attorneys general," because in so doing they are seeking to vindicate the general public's interest in preventing "imminent and substantial endangerment to health or the environment."5 The district court reasoned that because the Fallowfield corporations were seeking to vindicate their own pecuniary interests rather than to benefit the public, they were not acting as private attorneys general and therefore could not recover attorneys fees.6 The author of this Dialogue demonstrates that the Fallowfield decision is contrary to RCRA's plain language and the case law construing analogous fee-shifting provisions in other federal environmental statutes, as well as analogous U.S. Supreme Court jurisprudence construing the fee-shifting provision in the Civil Rights Act.7

This Dialogue begins with an analysis of the U.S. Supreme Court's decision in Alyeska Pipeline Service Co. v. Wilderness Society,8 which halted the federal judiciary's equitable practice of awarding attorneys fees to prevailing parties under the private attorneys general doctrine, and the congressional response to that decision. It then turns to an examination of the case law construing federal environmental statutes' citizen suit and fee-shifting provisions, while also reviewing analogous Supreme Court jurisprudence interpreting the Civil Rights Act's fee-shifting provision. Next, it analyzes the Fallowfield court's decision and discusses why the decision contravenes RCRA's plain language. Lastly, it points out the fallacies in the court's rationale and demonstrates that the court wrongly denied the Fallowfield plaintiffs recovery of their attorneys fees. A brief history of the private attorneys general doctrine and shifting of attorneys fees is necessary to place the Fallowfield decision in context.