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United States v. Recticel Foam Corp.

Citation: 25 ELR 20093
No. No. 2-92-78, 858 F. Supp. 726/(E.D. Tenn., 08/10/1993)

A magistrate judge finds in a criminal prosecution under the Resource Conservation and Recovery Act (RCRA) that a postuse mixture of spent solvent and other nonhazardous solid waste does not constitute an F002 listed hazardous waste. The magistrate judge first finds that the F002 listing, as amended, reaches both mixtures of spent solvent with another solvent that are mixed before use in a manufacturing process and solvent mixtures that are purchased as such. Relying on the testimony of a former U.S. Environmental Protection Agency (EPA) official, the magistrate finds that the amended F002 listing was not intended to cover postuse mixtures, because EPA believed that the mixture rule encompassed such mixtures. The magistrate judge notes that EPA's mixture rule was held invalid in Shell Oil Co. v. U.S. Environmental Protection Agency, 22 ELR 20305 (D.C.Cir. 1991). The magistrate judge also finds that the material at issue in this case constitutes a postuse mixture of a spent solvent hazardous waste with other nonhazardous waste streams and, thus, the material would be covered by EPA's mixture rule. The magistrate judge determines that absent the mixture rule, however, a waste can only be a hazardous waste as defined in RCRA regulations if it is a listed waste or it exhibits the characteristics of a hazardous waste. The magistrate judge finds, therefore, that EPA does not have continuing jurisdiction over the waste. Under the theory of continuing jurisdiction, regardless of the mixture rule's present status, the waste is hazardous waste because it was once deemed hazardous waste. There is no continuing jurisdiction because that jurisdictional theory does not apply to the waste at issue, which was never within EPA's jurisdiction in the first instance. The magistrate judge rejects the government's attempt to apply the "contained-in" rule to the solvent mixture because this rule only applies to mixtures of hazardous waste and nonsolid waste, and such a rule is inapplicable to the materials at issue in this case. The magistrate judge next finds that the government may not enforce in federal court the state's mixture rule against the defendant, because in the absence of the federal mixture rule, the state rule is broader in scope than the federal program. The magistrate judge also finds that the Shell Oil decision invalidated the mixture rule retroactively from the date it was promulgated. The magistrate judge finds that none of the wastes defendant handled were U listed wastes because they were not discarded in their pure form but rather were mixed with other waste streams before being discarded. Finally, the magistrate judge finds that the defendant did not illegally treat the wastes by mixing the hazardous and nonhazardous wastes.

Counsel for Plaintiff
Guy W. Blackwell, Ass't U.S. Attorney
U.S. Attorney's Office
115 U.S. CtHse., 103 Summer St. W., Greeneville TN 37743
(615) 639-6759

Counsel for Defendants
Judson W. Starr
Venable, Baetjer, Howard & Civiletti
1201 New York Ave. NW, Ste. 1000, Washington DC 20005
(202) 962-4800