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Rebuttal: The Mixture Rule and the Environmental Code

May 1995

Citation: 25 ELR 10244

Issue: 5

Author: 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

Van Carson is coordinator of the practice group in environmental law at Squire, Sanders & Dempsey and is resident in the Cleveland, Ohio, office. He has practiced environmental law for more than 25 years. He is a graduate of Duke Law School where he served on the Duke Law Journal.

Philip Schillawski is an associate with Squire, Sanders & Dempsey in the Cleveland office, where he concentrates on RCRA issues. He is a graduate of Michigan Law School, magna cum laude, and is a registered Professional Engineer with six years experience in the steel industry.

Mark Shere is Of Counsel with Squire, Sanders & Dempsey in its Columbus, Ohio, office, where he practices in the area of environmental litigation. His experience includes environmental cases in state and federal courts at the trial and appellate levels, as well as administrative hearings and adjudications. He is a graduate of Harvard Law School, cum laude, where he served as an editor of the Harvard Law Review. He is a former law clerk for the Honorable Jesse E. Eschbach, U.S. Court of Appeals for the Seventh Circuit.

Particular thanks go to Bryan G. Tabler, now general counsel and executive vice president of Indianapolis Power and Light Company, for his major role in the development of many of the points presented here. The views expressed in this Dialogue are the authors' own, not those of their firm or any of their clients.

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