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United States v. Marine Shale Processors

ELR Citation: 26 ELR 21000
Nos. 94-30419, 81 F.3d 1361/42 ERC 1507/(5th Cir., 04/18/1996)

The court holds that material resulting from sham recycling does not satisfy the "product" rule exception to the U.S. Environmental Protection Agency's (EPA's) land-disposal requirements under the Resource Conservation and Recovery Act. The product rule—40 C.F.R. §266.20—provides that material is exempt from EPA's land disposal requirements if it is produced for the general public's use, used in a manner that constitutes disposal, contains recyclable materials, has undergone a chemical reaction during the production process so that it is inseparable by physical means, and meets land-ban standards for each hazardous waste it contains. A wood-treatment company sent contaminated soil to a hazardous waste treatment facility for recycling. The facility mixed dust from incinerating the contaminated soil with toxic metals dust from other sources. The court first holds that the district court should not have entered a Fed. R. Civ. P. 54(b) partial judgment without deciding whether the facility was engaging in sham versus legitimate recycling. The court vacates and remands the Rule 54(b) judgment. The court next vacates any finding that the district court made on the question of when, if ever, EPA became able to enforce the state hazardous waste program's requirement that a facility wishing to take advantage of the product rule receive an express exemption from the appropriate administrative authority. Because the district court did not issue express findings of fact and conclusions of law on this question, appellate review is difficult.

The court next rejects the federal government's argument that the district court improperly instructed the jury regarding the meaning of the product rule's requirement that the product be "produced for the general public's use." In addition, the court holds that the jury instructions sufficiently communicated to the jury the question of whether hazardous waste constituents had undergone a chemical reaction so as to become inseparable by physical means. Finally, the court holds that any error with respect to three district court evidentiary rulings was harmless.

Counsel for Plaintiffs
David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
K. Eric Gisleson
Chaffe, McCall, Phillips, Toler & Sarpy
2300 Energy Ctr.
1100 Poydras St., New Orleans LA 70163
(504) 585-7000

Before REYNALDO G. GARZA, KING, and HIGGINBOTHAM, Circuit Judges.