25 ELR 10244 | Environmental Law Reporter | copyright © 1995 | All rights reserved

Rebuttal: The Mixture Rule and the Environmental Code

Van Carson, Philip Schillawski, and Mark Shere

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.

[25 ELR 10244]

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

Satterfield's unwritten principle is in direct conflict with a line of recent decisions by the EPA Environmental Appeals Board,6 the U.S. Court of Appeals for the Seventh Circuit,7 and the U.S. Court of Appeals for the Eighth Circuit.8 These decisions apply the Shell Oil case as an important, meaningful precedent, and read together they demonstrate that a variety of waste mixtures are not legally hazardous. These decisions, like Shell Oil itself, reject the argument that EPA can regulate the public, impose fines, and put people in jail on the basis of unwritten principles.

Like each of these tribunals, we disagree with Satterfield's argument. This disagreement is partly a matter of perspective — we represented the prevailing parties in two of the cases.9 But we also disagree with Satterfield on his own terms. Satterfield claims that the basis for his unwritten principle is "common sense."10 But the common-sense problem posed by waste mixtures is that some of them pose a danger, some do not, and it is important to tell the difference. Satterfield does not mention this problem. Instead, his "common-sense" approach boils down to regulating essentially all mixtures as hazardous — regardless of any dangers, regardless of cost, and regardless of the written regulations.

In this Dialogue, we explain the mixture rule as EPA originally issued it and as the Agency has since attempted [25 ELR 10245] to repromulgate it. We also discuss the underlying waste listings and the laboratory tests for hazardous waste. For most readers, this explanation will be the most useful part of the discussion because we raise a number of points about the regulations that are often overlooked. Along the way, we try to be explicit about both the reach and the limits of the current rules.

This explanation of the current rules then provides the basis for a more thorough review of Satterfield's unwritten principle and the basis for a broader perspective. The hazardous waste regulations are part of a vast, emerging environmental code. This code holds a bright promise — that it will grow and endure for decades as a framework for responsible personal and business activity, much like the tax code and the uniform commercial code. This promise will become reality if the courts, EPA, and practitioners apply the environmental code in a serious, consistent manner that focuses on legitimate environmental concerns. The promise will be lost, however, if unwritten principles and other strained interpretations of the rules are allowed to turn the code into a regulatory porridge. We believe that the words of the emerging environmental code have meaning, and that keeping faith with this meaning is essential to effective environmental protection for ourselves and our children.

What Makes a Waste Legally Hazardous?

EPA's regulations under the Resource Conservation and Recovery Act (RCRA)11 provide that wastes can be legally hazardous in two ways. The first way is if the wastes fail certain EPA-specified laboratory tests are commonly called "characteristic" hazardous wastes. The second way is if the wastes appear on EPA's regulatory lists. Wastes are presumed to be hazardous if they are the pure form or technical grade of one of the listed materials. These are the "listed" hazardous wastes.

Characteristic Hazardous Wastes

The first way to determine whether a waste is legally hazardous is by conducting EPA-specified laboratory tests. These tests are designed to show whether a waste has one of four characteristics that would tend to make it dangerous: Toxicity, ignitability, corrosivity, or chemical reactivity.12 The Agency's regulations incorporate a series of detailed laboratory manuals that describe precisely how to conduct each test.13 The Agency's regulations also specify numeric pass-fail thresholds for the tests.14

The laboratory tests are not perfect, but they do have two key points in their favor. First, their approach is a matter of common sense. Through the tests, EPA uses the measurable physical and chemical characteristics of wastes to determine if they are dangerous. We do not claim to be able to prove the point, but this scientific evaluation of dangerous characteristics seems to be the sort of process the public imagines when it hears that a waste has been found "hazardous." The second point in favor of the laboratory tests is that the numeric, pass-fail threshold provides a clear, bright-line standard. Even numeric test results can be ambiguous, of course, but well-established statistical methods are available to resolve these ambiguities.15 The laboratory tests thus provide a clear answer to the question of whether a waste is hazardous.

Another important feature of the laboratory tests is that they make no distinction between wastes and waste mixtures. If a waste or mixture fails the tests, it is a characteristic hazardous waste. If it passes, it is not. As a result, some wastes can "escape" regulation as hazardous waste by being incorporated into larger mixtures. That is, a waste taken in isolation may fail the laboratory tests and so be a characteristic hazardous waste. A larger mixture containing this waste may pass the tests, however, in which case the entire mixture is considered nonhazardous with respect to characteristics.

EPA recognizes this consequence of applying the laboratory tests to waste mixtures. When it issued the hazardous waste regulations in 1980, the Agency explained the basic approach that "[w]aste mixtures . . . are treated just like any other solid waste, i.e. they will be considered hazardous only if they exhibit the characteristics."16 In other words, a mixture that passes the laboratory tests is nonhazardous for characteristics even if some parts of the mixture would (or actually did) fail the tests when taken in isolation. The Agency also explained the consequence of this approach: "EPA recognizes that this may . . . allow some wastes to escape regulation merely by being mixed with other wastes or other materials."17 The Agency concluded that this consequence was necessary to preserve the consistency of the regulatory scheme.18

Satterfield does not discuss characteristic hazardous wastes in his Comment. This is a telling omission that contradicts his premise of a broad, unwritten mixture principle. According to Satterfield, his argument is based on this one "simple principle: Hazardous waste continues to be hazardous waste no matter where you put it."19 And Satterfield claims that his principle reflects common sense.20 As a matter of common sense, however, hazardous waste should not continue to be hazardous if you put it someplace where it loses the physical and chemical properties that may tend to make it dangerous. And Satterfield's "simple principle" is inconsistent with EPA's own view that "some wastes escape regulation merely by being mixed with other wastes or other materials."21

Listed Hazardous Wastes

EPA presumes that some wastes are legally hazardous regardless of test results. This presumption applies to wastes that EPA has included in lengthy regulatory lists. The lists [25 ELR 10246] fall into three categories. One category contains the "P" and "U" wastes.22 This category applies to a series of discarded chemical products. For example, the hazardous waste with the code P119 is described in the regulatory list as the chemical "ammonium vanadate."23 A second category consists of the "K" wastes. This category applies to wastes from specific industries.24 An example is K049, which is "slop oil emulsion solids from the petroleum refining industry."25 The third category consists of the "F" wastes, which are wastes from "non-specific" sources.26 For example, the F001 through F005 listings apply to a series of "spent solvents," and the F006 through F009 listings apply to a series of treatment sludges and plating bath residues "from electroplating operations."27 In all, EPA has listed about 800 separate wastes as hazardous.

The important point about the waste listings is that they possess none of the advantages of the laboratory tests. First, they are often ambiguous. Instead of a numeric, pass-fail threshold, the listings provide short, narrative descriptions that are open to conflicting interpretation.28 Second, the waste listings differ from the laboratory tests in that they do not have a clear, common-sense rationale. If a waste does not exhibit any dangerous physical or chemical characteristic, then it is difficult to see why it should nonetheless be labelled "hazardous" simply because it appears on a regulatory list.29
A word of history may help make the latter problem clear. EPA first proposed its hazardous waste regulations in 1978. Under this proposal, listed wastes were presumed to be hazardous. The proposal specified, however, that the presumption of hazard would lift automatically 90 days after a company submitted date to EPA showing that the waste had passed the Agency's laboratory tests.30 In other words, the listings essentially served only as a warning that the wastes had to be tested for characteristics.
In EPA's final 1980 regulations, however, the Agency made a key procedural change. The presumption that a listed waste was legally hazardous would not lift automatically after EPA received passing laboratory test results. Rather, EPA first had to review the test results and issue a formal delisting.31 The final rule did not specify standards for delistings, and those standards remain unclear even to this day.32
The delisting process has been in place since 1980, and experience has shown that it does not work well. Obtaining a delisting, even for the simplest wastes, routinely requires hundreds of thousands of dollars of work, and it takes years (in some cases, more than a decade) for the delisting office to process petitions. While a delisting request is pending, the wastes must still be managed and disposed as if they were hazardous, a requirement that often moots the whole issue. The result is that the waste listings, originally proposed as a simple presumption that could be rebutted with test results, have become for practical purposes an independent standard that declares wastes hazardous regardless of test results.
EPA has responded to these problems in two ways. First, it recently issued a series of proposals for regulatory reform that included abolishing the listings altogether.33 The Agency has since withdrawn this particular reform package, but it has repeatedly stated that it still plans to issue at least some sort of automatic delisting threshold for wastes that have only low concentrations of chemical constituents.34
The second thing EPA has done, with assistance from the courts, is limit the listings to a narrow scope. According to EPA, the listings apply only to the "specific" and "particularized" wastes that are listed.35 EPA also issued a regulatory comment explaining that the "P" and "U" wastes apply only to the "commercially pure" or "technical grade" form of the listed chemical.36 The Agency similarly interpreted its "F" listings as applying only to the "technical [25 ELR 10247] grade" of the listed material.37 And the Court of Appeals for the Seventh Circuit has concluded generally that "the simple listing of a waste would subject to regulation only those facilities that managed the waste in pure form."38
This narrow scope of the waste listings is important because it helps to alleviate both of the problems that the listings potentially raise. The potential ambiguity of the narrative listings is reduced because only pure or technical grade wastes that lie clearly within the express words of the listings are covered. Similarly, the underlying rationale for the listings begins to make more sense as the listings become targeted at the pure form or technical grade of specific wastes that EPA believes might pose some danger.
To recap, a waste can be hazardous in two ways. It can fail EPA-specified laboratory tests, in which case it is a characteristic hazardous waste. The waste can also be the pure form or technical grade of specific, listed wastes. The rationale for the waste listings is questionable, but the potential difficulties are limited by the narrow scope of the listings. The listed wastes, in turn, are the basis for EPA's mixture rule.
Mixtures and the Mixture Rule
The mixture rule is a written regulation stating that "[a] solid waste . . . is a hazardous waste if . . . [i]t is a mixture of solid waste and one or more hazardous wastes listed" in EPA's regulations.39 In other words, once a listed waste is formed, any subsequent mixture containing the listed waste is also considered hazardous.
Under the rule, listed hazardous wastes are presumed to be tainted in a way that characteristic wastes are not. As discussed above, mixtures formed from characteristic wastes are only hazardous if they continue to exhibit a hazardous characteristic.40 By contract, under the mixture rule, any mixture that is formed from a listed waste is itself presumed to be hazardous. This presumptive taint from listed wastes has the potential to create extreme results. Taken literally, the mixture rule says that an entire ocean of nonhazardous waste becomes "hazardous" if it contains a single drop of listed waste. Similarly, a single drop taken from this ocean could then make another ocean legally "hazardous," and so on.
Although the mixture rule has potentially extreme consequences, it also has its limitations. The rule applies only to certain kinds of mixtures — those that are formed from listed wastes. As described above, EPA and the courts have limited the waste listings to the pure or technical grade of the materials. Many wastes fail to satisfy this criterion. This limitation of the waste listings has important implications for the mixture rule, because that rule applies only if the pure form or technical grade of a listed material is formed first, and this listed waste is then incorporated into a larger waste stream.
A detailed example of one way the waste listings, and consequently the mixture rule, fail to reach certain types of wastes may help illustrate this limitation. The listings with hazardous waste codes F001, F002, and F004 apply to certain "spent solvents." The words of the listing are important — it is not the solvents themselves that are listed, only their spent form. The solvent itself is only the precursor, or source, of the listed waste. When EPA first issued them in 1980, these listings provided:
F001 . . . The spent halogenated solvents . . . methylene chloride . . . and sludges from recovery of these solvents in degreasing operations.
F002 . . . The spent halogenated solvents, . . . o-dichlorobenzene . . . and the still bottoms from the recovery of these solvents.
F004 . . . The spent non-halogenated solvents, cresol and cresylic acid and the still bottoms from the recovery of these solvents.41
EPA had to apply these listings when the Safety Kleen Corporation asked the Agency to delist the spent form of the company's solvent. Before use, the solvent was a mixture of 29 percent methylene chloride (a precursor of F001), 29 percent o-dichlorobenzene (a precursor of F002), 14 percent cresylic acid (a precursor of F004), water, and a surfactant.42 EPA concluded that no delisting was necessary because the spent mixture was not a hazardous waste. "[I]t is our interpretation that the regulations are intended to apply to spent solvents identifiable as any technical grade of the chemical that is produced or marketed and not to mixtures otherwise containing the chemical."43 In other words, when the precursors of F001, F002, and F004 were mixed, and that mixture was then used or spent, the resulting waste was not a hazardous waste.44 Because no listed waste was formed in the first place, the mixture rule would not apply.45
EPA subsequently reversed field, concluding that solvents such as Safety Kleen's should be included as listed wastes. Recognizing that such solvents did not correspond to the pure form or technical grade of the F001, F002, or F004 [25 ELR 10248] listings, EPA in 1985 expressly amended these listings, and two others relating to spent solvents (F003 and F005), to embrace materials containing 10 percent or more of the precursor solvent.46 These spent solvent listings are currently the only listings that EPA has extended in this way — similar language is "conspicuously absent" from the other F, K, P, and U categories of listed waste.47
As the Agency has commented, much of the regulated public is unaware of this aspect of the listings and its effect on the scope of the mixture rule.48 This limitation has important consequences, however, for a number of common industrial waste streams. For example, various listings apply to "wastewater treatment sludge" from certain types of industrial operations, including metal heat treating (F012), chemical conversion coating (F019), wood preserving (K001), manufacture of pigments and organic and inorganic chemicals (K002-007, K151, K106), and manufacture of pesticides and pharmaceuticals (K032, K035, K037, K040-41, K084). At many facilities, wastewater from these operations is mixed with other wastewaters before any "wastewater treatment sludge" is formed, in a bona fide process that is not based in any way on an intent to evade the regulations.49 In these situations, the combined wastewater is not the precursor of any listed hazardous waste. The subsequent treatment of the combined wastewater never produces a hazardous waste under the waste listings, because wastewater treatment sludge "from mixed wastewaters" is not a listed waste.50 The mixture rule would not apply to mixtures containing this treatment sludge and other solid waste, because the mixture rule does not apply when mixing takes place before the formation of any listed waste.51
It may sound arbitrary that the mixture rule applies to mixing that occurs after a listed waste is formed but not to mixing that occurs before. And to a certain extent, it is. But the mixture rule itself is a largely arbitrary enforcement tool — it is a presumption of hazard that says nothing about the actual risk a particular waste may pose. Even so, the distinction has some logic behind it. EPA's position is that it may only list wastes that come from a process that poses a "uniformity of hazard."52 And, in EPA's words, "[t]he Agency, of course, must demonstrate that sufficient uniformity exists or is likely to exist" to support its listings.53 In cases where an industrial process creates a pure listed waste, it is reasonable to argue that the process creates a "uniformity of risk." And it is arguable that this risk, once created, should be presumed to continue into subsequent mixtures. But this logic does not apply when waste precursors are mixed early in the process, so that no "uniformity" of risk exists in the first place. There is some sense, then, in distinguishing between mixtures created after a listed waste has been formed and those mixtures created before any listed waste exists, at least for purposes of creating a presumption of hazard.
Finally, lines have to be drawn somewhere. EPA has substantial discretion about where to draw those lines when it first issues regulations, but it must abide by its regulations once issued.54 The mixture rule states on its face that it applies only to mixtures of solid waste "and one or more hazardous wastes listed" in the Agency's regulations. If no listed waste is ever formed, this regulation cannot apply regardless of the reasons that might support issuing a different regulation with a broader reach.
The Validity/Invalidity of the Mixture Rule
The mixture rule was born in 1980, died in 1992, was resurrected the same year, and is now chronically ill. This history is important because the rule can only be enforced during the periods that it was lawfully in effect. The rule's validity during different time periods thus determines what types of waste management practices, both now and in the past, may carry a risk of penalties.
Like the listings themselves, the mixture rule has an interesting history. The rule did not appear in EPA's original proposal for its hazardous waste regulations in 1978. Instead, the rule made its debut in the final rules that EPA issued in 1980. A range of industry groups promptly challenged the rule in court. These groups argued that the mixture rule's sudden appearance in 1980 violated the Administrative Procedure Act's (APA's) requirement that all regulations be issued with advance notice and opportunity for public comment.55 The industry groups also argued a broader point, claiming that the rule exceeded EPA's authority because it declared many mixtures to be "hazardous" even though they posted no legitimate danger.
The litigation dragged on for 12 years, finally resulting in the Shell Oil decision. In that decision, the D.C. Circuit vacated the mixture rule, holding that EPA "entirely failed to comply with notice-and-comment requirements" in issuing it.56 The court did not, however, decide the broader question of whether the mixture rule exceeded the Agency's overall authority.56
[25 ELR 10249]

EPA promptly reissued the mixture rule on an "interim final" basis on February 18, 1992,57 the same day that the court's decision in Shell Oil took effect. The Agency cannot be faulted for this quick repromulgation. The D.C. Circuit was clearly concerned that its decision should not create new environmental risks, and it suggested in the Shell Oil decision that "the agency may wish to consider reenacting the rule[], in whole or in part, on an interim basis under the 'good cause' exemption [of the APA] pending full notice and opportunity for comment."58

Congress too was concerned that no new environmental risks be created and the EPA finally issue appropriate regulations for waste mixtures. Congress accordingly adopted the Chafee Amendment as part of an EPA appropriations bill. The Chafee Amendment required EPA to "promulgate revisions" to the mixture rule "by October 1, 1994."59 Until that date, the Chafee Amendment prohibited the interim final rule from being "terminated or withdrawn."60 Meanwhile, October 1, 1994, has come and gone, and EPA has not issued a new or revised rule.
Because EPA failed to issue the mixture rule in a lawful manner before February 18, 1992, the rule did not exist before then for legal purposes.61 From February 18, 1992, to October 6, 1992, the mixture rule was a procedurally valid, interim regulation. From October 6, 1992, to October 1, 1994, the mixture rule was not just an interim regulation, but was essentially incorporated into law by the Chafee Amendment.62 Since October 1, 1994, EPA has been in violation of the law by failing to promulgate revisions to the mixture rule as the Chafee Amendment requires.
A key issue is whether the mixture rule continues to be enforceable after October 1, 1994. This is a debatable matter, but we believe that the better conclusion is that it is not. After October 1, 1994, the continued existence of the interim final rule conflicts with the express terms of the Chafee Amendment that the rule must be revised before that date.63 Nor does it appear reasonable to justify the continued validity of the interim final rule through the "good cause" exemption under which EPA originally issued it. That exemption allows an agency to issue rules without prior notice and comment when notice would be "impractical, unnecessary, or contrary to the public interest."64 It has now been three years since EPA issued the interim final rule. This is ample, practical time for EPA to have issued new regulations, as Congress required. If the "good cause" exemption no longer applies, then the mixture rule is currently unenforceable. We repeat, however, that the issue is debatable.65
The discussion of the mixture rule's validity to this point has been procedural. Much administrative law is devoted to this kind of procedural analysis, often to the exclusion of the real issues.66 The real issue, it bears repeating, is that the mixture rule declares wastes to be legally "hazardous" regardless of any actual risk.67 This is inconsistent with RCRA's plain language. Under RCRA, "hazardous waste" means a material that may:
(a) cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or
(b) pose a substantial present or potential hazard to human health or the environment when improperly . . . managed.68
Thesecond paragraph of this definition is circular. It defines "hazardous" waste as material that may pose a "substantial . . . hazard." The first paragraph is the one with bite, explaining the kinds of effects that qualify as a "hazard."69 This paragraph explains that a hazardous waste is something that may "cause" or "significantly contribute" to death, irreversible illness, or incapacitating illness. In our view, this definition clearly states that a waste must pose a legitimate danger to be considered legally hazardous. The mixture rule's presumption that a waste is hazardous even if it does not pose any legitimate danger thus conflicts with the underlying statute and must yield as unlawful.70
EPA defends the mixture rule on the ground that the delisting process is available, and that courts should require companies to exhaust this administrative remedy before [25 ELR 10250] claiming that the rule is unlawful.71 This argument has some force, and some limitations. Courts do not require the regulated public to exhaust the administrative process when that process is futile.72 The expense, delay, and uncertainty of the delisting process are well known. Indeed, EPA itself predicted that delisting would only be practical for companies that "routinely mix wastes in relatively constant proportions" as part of their ongoing operations.73 Given EPA's admission that the delisting process can provide relief in only a limited class of cases, we believe that the mixture rule exceeds EPA's authority under RCRA.74
Here too, the legal issues are debatable and uncertain; we do not mean to imply that our evaluation will be the last word. One other disclaimer is appropriate. The period from October 6, 1992, to October 1, 1994, raises separate issues, because the Chafee Amendment provided separate statutory authorization for the mixture rule between those dates. It is doubtful that Congress intended the Chafee Amendment to support the mixture rule even in cases of clear conflict with RCRA's definition of hazardous waste. EPA's case is stronger, nonetheless, that the mixture rule should be considered valid during this period.
Practical Considerations
The practical result of the written mixture rule being invalid (even if only during some time periods) is that some waste mixtures are not considered legally hazardous when otherwise they would be. This is precisely Satterfield's concern — that some mixtures will "escape" regulation as hazardous waste without the mixture role.75 But it is unclear why Satterfield views this result with such alarm. The only mixtures affected are those that do not exhibit any hazardous characteristic under EPA's laboratory tests. (Otherwise, they would be characteristic hazardous waste.) EPA itself acknowledges that "millions of tons" of such waste mixtures pose relatively low risks, and can be managed safely outside of the hazardous waste system.76 Does Satterfield disagree with EPA's assessment? He does not say. The practical problem of identifying which mixtures pose a legitimate danger and which do not has no place in Satterfield's argument.
Moreover, state law still applies to nonhazardous wastes, and every state with which we are familiar imposes extensive regulatory requirements. How many layers of regulatory control does Satterfield think are necessary for low-risk wastes? Again, he does not say. By EPA's own estimate, federal regulation of low-risk mixtures imposes unnecessary regulatory costs that may exceed $ 1 billion per year.77 But the cost that regulations impose is another practical problem that has no place in Satterfield's argument.
These costs, by the way, are not just monetary. It takes work to handle a material as hazardous waste. For example, EPA's regulations often require that such waste be trucked great distances to special landfills or that accumulations of the waste be capped in place under a large volume of clay or other impermeable material. This work involves significant risks to the public and to workers from traffic and construction accidents. These risks may often exceed the supposed dangers that the regulations are designed to prevent, especially with respect to the millions of tons of wastes that EPA itself acknowledges as posing little hazard.78 People killed in construction and traffic accidents have no place, however, in Satterfield's analysis.
Further, even the monetary costs may have a substantial health component. Regulatory costs may contribute to unemployment, and so exacerbate serious health concerns that include alcoholism, spouse abuse, and suicide.79 More generally, investigators report that mortality data show a substantial overall correlation between health and wealth. They estimate from this data that regulatory costs in the range of $ 3 million to $ 7 million may lead to one premature death in the public.80 If this estimate is anywhere close to accurate, it is a reasonable conclusion that the costs from regulation of low-risk waste mixtures may lead to a serious loss of human life and public health.
Satterfield does not acknowledge the problem that some mixtures pose legitimate dangers and some do not. Nor does he acknowledge the human toll that appears to result from unnecessary regulatory costs. Instead, he insists that no waste mixtures must be allowed to "escape" regulation as hazardous waste. The basis for his argument is discussed in the next section.
[25 ELR 10251]

Satterfield's Unwritten Mixture Principle

Satterfield argues that courts should enforce an unwritten mixture principle. This unwritten principle will pick up where the written rule leaves off, so that no waste mixtures will "escape" regulation as hazardous waste. Satterfield argues that this unwritten principle should be the basis for criminal convictions81 and for civil penalties that may run into the millions of dollars82 — apparently all without the government showing any environmental harm.83
Satterfield supports his unwritten principle with a patchwork of claims. He says that the unwritten principle is a matter of common sense, that the principle is a logical outgrowth of various regulations, that the written mixture rule is just a clarification of the principle, that the principle reflects EPA's continuing jurisdiction, and that the principle follows from EPA's policies regarding contaminated soils and radioactive wastes.
In this section, we describe each of Satterfield's claims and identify their serious flaws. Before diving into the specific claims, however, some perspective is appropriate. Satterfield could be correct in each of his specific claims, and his argument would still miss the mark. It ultimately does not matter what common themes or principles might be deduced from the regulations, what the Agency intended, what makes sense, or what might have been. These are valid considerations when it comes to debating whether to issue new regulations. But courts may only free and jail people for violating an existing, written rule that prohibits their conduct in terms that would be clear to a reasonable member of the public. Even if Satterfield's analysis were insightful, his ideas would still have to be enacted into the law or regulations before courts could enforce them. That said, we turn to Satterfield's specific points.
Common Sense
Satterfield claims that the unwritten mixture principle is just a matter of common sense. His main statement of this point is as follows:
If you add salt to water, you do not get rid of the salt. You simply cannot see it. If you throw sawdust on the ground and mix it with dirt, you have not gotten rid of the sawdust. It is still there. The same is true of mixing hazardous waste with nonhazardous materials. You have not gotten rid of the hazardous waste; it is just surrounded by other material. This is common sense.84
This passage has a surface appeal. If you take a waste and mix it with other materials, Satterfield is right that the original waste "is still there" at least in some sense.
The common-sense question, though, is not whether the waste is still there, but whether it is still hazardous. Satterfield's trick is in switching from nouns to adjectives. In the above passage, "salt" is a noun, so is "sawdust," and "waste." But "hazardous" is an adjective. This grammatical point makes all the difference. If you add salt to water, you do not get rid of the salt (a noun). But the mixture may or may not be salty (an adjective). So too, you can add "dry sawdust" to soil, and the sawdust (a noun) is still there. But the mixture may or may not be dry (an adjective). Now add "hazardous waste" to some other, benign material. The waste is still there. But the mixture may or may not be hazardous.
Satterfield drops a footnote acknowledging that mixing wastes can change their physical characteristics.85 But he ignores the significance of the point, which is that wastes may or may not continue to pose a legitimate danger after mixing with other materials. Common sense suggests that it is important to distinguish the mixtures that do pose a danger from those that do not. But again, Satterfield does not come to terms with this common-sense problem. Satterfield's argument about salt and sawdust is not about common sense, but about word play.
The Mixture Rule Is a "Logical Outgrowth"
The rest of Satterfield's arguments are technical and legalistic. In one of these arguments, Satterfield invokes the "logical outgrowth" doctrine that is commonly applied in administrative law. As stated above, administrative agencies must provide advance notice of their proposed rulemakings and opportunity for public comment before issuing final rules. But a final rule need not be a duplicate of the proposal. Rather, the courts have concluded that the public receives adequate notice as long as the final rule is the logical outgrowth of the proposal.
This doctrine thus upholds the validity of written regulations that are a logical outgrowth of proposed regulations that received public notice and comment. The doctrine does not, however, support Satterfield's mixture principle. Satterfield's principle is unwritten, and it is not a logical outgrowth of the Agency's 1978 proposed rules.86 On both of [25 ELR 10252] these counts, Satterfield's mixture principle fails to come within the scope of the logical outgrowth doctrine.
Satterfield tries, instead, to use the logical outgrowth doctrine in a new way. He says that the mixture principle is a logical outgrowth of EPA's 1980 final regulations.87 Satterfield is thus claiming that an unwritten principle can be enforced as long as it is the logical outgrowth of any existing regulation. This claim is a massive distortion of the logical outgrowth doctrine. Suffice to say that the rule of law will be seriously undermined if the public must not only comply with hundreds of thousands of pages of federal regulations, but also must anticipate and comply with every possible logical outgrowth (many of them conflicting) of those regulations. Logical outgrowth or not, a rule must still be reduced to writing and validly issued before it can be enforced.
The Mixture Rule Merely "Clarifies" the Mixture Principle
Satterfield has a second version of the logical outgrowth argument. He argues that the written mixture rule was merely a "clarification" of the broader mixture principle. Because the written rule merely clarified what EPA intended all along, he claims, it does not matter whether the written rule is valid or not.88
Satterfield's clarification argument ignores the explicit basis of the Shell Oil decision, which rejected the claim that "the [mixture] rule merely clarifies the intent behind the proposal that listed wastes remain hazardous until delisted."89 According to the court, far from being a clarification, the mixture rule was part of a "marked shift in emphasis" that was "neither implicit in nor a "logical outgrowth" of the proposed regulations." If Satterfield thinks that the Shell Oil decision was wrongly decided, he should say why, rather than trying to make an end run around the decision through an unwritten principle.90
Satterfield's clarification argument is also at odds with EPA's own views. It is true that EPA has sometimes stated in passing that the appearance of the written mixture rule in 1980 was merely a "clarification" of what it had intended in the 1978 proposal.91 Satterfield builds his clarification argument on these occasional uses of the word. But EPA's own Environmental Appeals Board recently concluded in In re Hardin County that the mixture rule was not a mere "clarification," in the course of dismissing an administrative complaint alleging that mixed wastewater treatment sludges were a hazardous waste.92 Satterfield does not discuss the Hardin County decision. He thus ignores EPA's most recent, most authoritative statement on the clarification issue.
Satterfield also ignores a number of other EPA statements that illustrate the importance of the written mixture rule. In a 1989 proposed rulemaking, for example, the Agency explained: "EPA has resolved to continue to apply the mixture rule to . . . mixed waste streams under almost all circumstances because to do otherwise would allow many wastes to remain effectively excluded from potential Subtitle C regulation" for hazardous wastes.93 This statement clearly shows that the mixture rule has important, independent effect, and that waste mixtures would be excluded from regulation without it.94
The one EPA statement that Satterfield does acknowledge is from the preamble to EPA's 1980 regulations. There the Agency discussed the regulation of waste mixtures and explained that "[w]ithout such a rule, generators could evade Subtitle C requirements simply by commingling listed wastes with nonhazardous solid waste."95 Satterfield claims that it is "unlikely that the Agency was referring to the formal mixture rule" in this statement.96 Rather he argues that the Agency was referring to a general "intention" that waste mixtures must be regulated as hazardous — "[t]his intention was probably the 'rule' to which EPA was referring."97 Satterfield's argument boils down to the claim that a "rule" and an "intention" are interchangeable terms. This is a significant strain on the language and on the law.98
Finally, it is a settled rule of law that regulations must be applied "in such fashion that every word has some [25 ELR 10253] operative effect."99 The courts "have consistently expressed a deep reluctance" to adopt interpretations that would "render superfluous other provisions in the same enactment."100 Though Satterfield casts his argument in terms of the mixture rule being a clarification, what he means in practical terms is that the mixture rule is surplus language that makes no difference to the regulatory status of any waste. This argument defies settled legal interpretation. Moreover, the Court of Appeals for the D.C. Circuit disagrees; EPA's own Environmental Appeals Board disagrees; and repeated statements by EPA over the years are inconsistent with the clarification argument. The written mixture rule is not a clarification of Satterfield's principle; it is the sole embodiment of it.
Continuing Jurisdiction
Another technical, legal argument that Satterfield makes in his original Comment (and which is the focus of his current response) is that the mixture principle is a corollary of something he calls "continuing jurisdiction."101 But the term "continuing jurisdiction" does not appear in any regulation or in any of EPA's published discussions of its hazardous waste regulations in the Federal Register. Nor has a doctrine of continuing jurisdiction been adopted by any court.102
The term itself is a misnomer. Jurisdiction is a legal term that describes the authority of a court to hear a case. But questions of jurisdiction are only the beginning of a court's analysis. Once a court decides that it has jurisdiction, it must decide what laws and regulations apply to the case to make its decision. RCRA obviously confers authority or jurisdiction on EPA to issue regulations concerning wastes and waste mixtures. The fact that EPA has jurisdiction, however, is only the starting point. The question then becomes how the agency has chosen to exercise that jurisdiction, that is, what regulations the agency has actually issued. Jurisdiction is irrelevant in the absence of a valid written regulation that applies to the conduct in question. It appears that Satterfield uses the term "continuing jurisdiction" as a legal-sounding label to jazz up an argument that has nothing to do with jurisdiction.
According to Satterfield, the "continuing jurisdiction principle . . . appears in [40 C.F.R.] § 261.3(c)(1) of EPA's definition of hazardous waste."103 He quotes a portion of the regulation — " [a listed] hazardous waste will remain a hazardous waste until delisted."104 This is an argument about the words of § 261.3(c)(1). It has nothing to do with any sort of jurisdiction. It also has nothing to do with waste mixtures. Such mixtures are not listed waste, and so do not come within the scope of the regulatory words. The fact that a listed waste "remains" hazardous has no significance for materials that are not, never were, or have ceased to be a listed waste at all.
Moreover, Satterfield never acknowledges the history of this regulatory language. Recall that the 1978 proposed regulations said that a listed hazardous waste would remain hazardous only until 90 days after EPA received laboratory data showing it to be nonhazardous.105 EPA changed this approach in its 1980 final rule. Under this change, a listed waste (that is, the pure form or technical grade of the material identified in EPA's regulations) is presumed to be hazardous until EPA issues a formal delisting.106 Section 261.3(c)(1) is the only section of the regulations that reflects this change, in the statement "[a listed] hazardous waste will remain a hazardous waste" until delisted. This statement, on which Satterfield builds a whole doctrine, means only that the presumption of legal hazard for pure or technical grade wastes does not lift automatically after submitting test data, as EPA had originally proposed. The statement does not support Satterfield's broad, unwritten mixture principle.
Finally, Satterfield's continuing jurisdiction argument under § 261.3(c)(1) comes down to a procedural game. If, as Satterfield argues, § 261.3(c)(1) is a statement of the mixture principle, then the provision is invalid just like the written mixture rule. The provision is invalid on procedural grounds because EPA failed to provide advance notice of its requirements in the 1978 proposed rule. It is also invalid because EPA failed for the past 14 years to explain, even once, the meaning of this rule in any published source — except in the Hardin County decision, in which the Environmental Appeals Board squarely rejected Satterfield's argument about the meaning of § 261.3(c)(1).107 And the provision is invalid as a matter of substance, because it declares many wastes to be "hazardous" even though they pose no actual danger. Satterfield's procedural game is to claim that these legal infirmities make no difference — "[t]he time allowed to challenge [the provision] has long since passed," he says.108 This is incorrect. Judicial review continues to be available when an agency adopts a broad, new interpretation of a preexisting regulation.109 The mixture rule is unlawful, and it does not become lawful by sticking on the new label of "continuing jurisdiction."
The Contained-In Rule and Radioactive Wastes
When the written mixture rule was intact, EPA relied on it to issue two interpretive statements in the Federal Register. One statement provided that mixtures would be considered legally hazardous if they consisted of listed wastes mixed [25 ELR 10254] with soil or groundwater. This statement is commonly called the "contained-in" principle. The contained-in principle extended the written mixture rule because the mixture rule applies only to mixtures of listed waste and solid waste. Soil and groundwater are not solid waste.110 In a separate statement in the Federal Register, EPA also provided that it would consider mixtures of listed waste and radioactive materials hazardous. This statement too was an extension of the written mixture rule, because radioactive materials also were not considered solid waste.
Satterfield argues that these two statements by EPA support his unwritten mixture principle.111 This argument is incorrect for two reasons. First, the contained-in principle and the radioactive mixtures principle became effective only after EPA reduced them to writing in clear, explicit terms and presented them to the public.112 Nothing about this history supports the current enforcement of a broad mixture principle that is not written anywhere. If additional principles are needed, then EPA should put them in writing and validly issue them.
The second reason that Satterfield is incorrect is that he has the matter backwards. The contained-in principle and the radioactive mixtures principle were based on the premise of a valid, written mixture rule. EPA and the courts thus treated the new principles as "interpretive statements" that were closely tied to the existing regulatory provisions.113 With the mixture rule vacated in Shell Oil, however, the foundation for these interpretive statements is gone.
Having based these interpretive statements on the mixture rule in the first place, EPA cannot turn around and support an unwritten mixture principle on the basis of the interpretive statements. The Seventh Circuit rejected such an attempt by EPA lawyers as "ironic[]" and "bootstrapping."114 The question today is whether the contained-in principle and the radioactive mixtures principle continue to be valid themselves absent the mixture rule. The principles no longer have any basis in the written regulations (leaving aside the repromulgated interim rule), and the Seventh Circuit's language suggests that it was skeptical about their continued viability. It is doubtful, then, that these principles can continue to support their own weight, much less the broad, unwritten principle that Satterfield endorses.
The Future of the Environmental Code
If you have read this far, you have our thanks. We know that the topic is not easy. The mixture rule is not inherently complicated, but it is impossible to understand without an appreciation of its relationship to the laboratory tests for characteristic wastes and to the listed wastes. It also helps to know about EPA's 1978 proposed regulations and the Agency's final 1980 regulations, as well as RCRA's definition of hazardous waste. Even then, new concepts seem to appear out of nowhere — "continuing jurisdiction" for example. And yet the mixture rule is just one piece of an environmental code that includes about 10,000 pages of federal laws and regulations and is growing.
In our discussion of the mixture rule, we have tried to explain what makes a waste legally hazardous and what does not. Along the way, we have tried to be candid about legal issues that are unsettled. And we have tried to keep the discussion centered on the goal of protecting against legitimate environmental risks. In a 10,000 page code, we think that this kind of approach, consistently applied, is the only way to prevent the entire scheme from degenerating into a meaningless, contradictory jumble.
The environmental code may one day take its place next to the tax code and the uniform commercial code as one of the great achievements of our legal system. To get there, however, the environmental code will need to meet hard objectives. It will need to provide effective protection against legitimate dangers to the environment. It will also need to provide clear, predictable rules for the many industrial and commercial activities that come within its reach. And it will need to have an internal logic that will provide fairness and consistency.
Failure is a real danger. Failure would follow from distorting the words of the code to serve short-term political goals. It would follow from a code that becomes disconnected from legitimate environmental risks, or that becomes so complex or ambiguous that the regulated public does not know what it means in common situations. And it would follow from an enforcement scheme that appears to strike arbitrarily, relying on the in terrorem effect of show trials rather than on consistent application of the rules.115
Experience with the mixture rule shows both the promise and the dangers for the environmental code. The number of potential arguments that can be made sometimes seems endless, as Satterfield's Comment shows. After years of work and litigation, however, the D.C. Circuit, the Seventh Circuit, the Eighth Circuit, and EPA's Environmental Appeals Board have provided a clear line of authority. The meaning of these decisions, and of the environmental code more generally, deserves our respect and protection.
Conclusion
Wastes are legally hazardous if they fail EPA's laboratory tests for hazardous characteristics. They are also hazardous if they correspond to the pure or technical grade of the wastes identified in EPA's regulatory lists. Under the mixture rule, mixtures created after the formation of a listed waste are also legally hazardous. The mixture rule was vacated as of February 1992 by the Shell Oil decision, so the rule did not exist for legal purposes prior to that date. EPA promptly repromulgated the mixture rule on an interim basis, but the current validity of the interim rule is doubtful. EPA is in violation of a congressional deadline for revising the interim rule; the agency did not provide advance notice [25 ELR 10255] and comment for the interim rule; and the interim rule conflicts in many cases with the definition of hazardous waste under RCRA. This much reflects the written regulations, the court decisions, and EPA's own statements. These sources form a substantial portion of the developing environmental code. If the meaning of that code is to be preserved, fidelity to these authorities is essential. The creation of broad, unwritten principles can only undermine this code's ability to protect the environment, for us today and for our children in years to come.
1. 950 F.2d 741, 22 ELR 20305 (D.C. Cir. 1991, as amended 1992).

2. See infra note 94 (quoting EPA's briefs in Shell Oil); see also United States v. Recticel Foam Corp., 861 F. Supp. 726, 25 ELR 20093 (E.D. Tenn. 1993) (recommending dismissal of a criminal indictment based in part on the description of the mixture rule in EPA's briefs in Shell Oil).

3. James E. Satterfield, EPA's Mixture Rule: Why the Fuss?, 24 ELR 10712 (Dec. 1994). James Satterfield is senior associate editor of ELR — The Environmental Law Reporter. Satterfield does not identify his connection, if any, with the issues surrounding the mixture rule. His Comment is largely a replay of the losing legal briefs that EPA lawyers have submitted in the judicial and administrative proceedings discussed in the text.

4. James E. Satterfield, EPA's Continuing Jurisdiction Regulation: A Response to The Mixture Rule and the Environmental Code, 25 ELR 10262 (May 1995).

5. Satterfield, supra note 3, at 10718.

6. In re Hardin County, Ohio, RCRA (3008) Appeal No. 93-1 ELR ADMIN. MAT. II 40313 (EPA, EAB Apr. 12, 1994).

7. United States v. Bethlehem Steel Corp., 38 F.3d 862, 24 ELR 21499 (7th Cir. 1994).

8. United States v. Goodner Bros. Aircraft, Inc., 966 F.2d 380, 22 ELR 21201 (8th Cir. 1992).

9. Philip Schillawski represented Hardin County in Hardin County, ELR ADMIN. MAT. II 40313, in which the County prevailed on all issues. Mark Shere represented Bethlehem Steel in Bethlehem Steel, 38 F.3d 862, 24 ELR 21499, in which the company prevailed on all hazardous waste issues. Van Carson and Philip Schillawski represented the American Iron and Steel Institute as amicus curiae in support of Bethlehem Steel on these issues.

10. Satterfield, supra note 3, at 10713-14, 10718.

11. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012.

12. See 40 C.F.R. § 261.20-24 (1994).

13. See, e.g., id. pt. 261, App. II.

14. See, e.g., id. § 261.24 (table 1) (numeric thresholds for the toxicity characteristic).

15. An excellent discussion of EPA-approved statistical methods appears in U.S. EPA, TEST METHODS FOR EVALUATING SOLID WASTE, ch. 9 (1986 & Supp.).

16. Hazardous Waste Management System: General, 45 Fed. Reg. 33066, 33095 (May 19, 1980) [hereinafter 1980 Final Rule].

17. Id.

18. Id.

19. Satterfield, supra note 3, at 10718.

20. Id.

21. 1980 Final Rule, supra note 16, at 33095.

22. 40 C.F.R. § 261.33

25 ELR 10244 | Environmental Law Reporter | copyright © 1995 | All rights reserved

(1994).
23. Id.
24. Id. § 261.32
.
25. Id.
26. Id. § 261.31
.
27. Id.
28. For example, a number of listings refer to types of "wastewater treatment sludge." To apply these listings, it is necessary to know what the Agency means by "treatment."
One possible meaning is contained in the regulations themselves. The definitional section limits the meaning of the word "treatment" to processess that change the character "of a hazardous waste." 40 C.F.R. § 260.10 (1994). Under this definition, the listings for "waste-water treatment sludge" apply only to sludges formed from the treatment of hazardous wastewater (that is, treatment "of a hazardous waste"). Sludge formed from nonhazardous wastewater would not come within the scope of the listing because it would not be "treatment sludge." "Treatment" also has a common dictionary meaning, and a somewhat different meaning among specialists in the field of wastewater treatment. Different definitions will make different wastes legally hazardous.
29. EPA states that it uses a "flexible, multiple factor approach to listing wastes . . . to be better able to accommodate itself to complex determinations of hazard." 1980 Final Rule, supra note 16, at 33107. A detailed examination of this "flexible" approach is beyond the scope of this Dialogue, but the Agency typically provides few specifics about the health risks that it perceives from wastes prior to listing them. Satterfield similarly provides no explanation of the supposed risks of listed wastes.
30. Proposed Guidelines and Regulations and Proposal on Identification and Listing, 43 Fed. Reg. 58945 (proposed Dec. 18, 1978); Shell Oil Co. v. U.S. Environmental Protection Agency, 950 F.2d at 751-52, 22 ELR 20309 (D.C. Cir 1991, as amended 1992).
31. 40 C.F.R. § 261.3(c)(1) (1994).
32. EPA has never identified clear pass-fail standards for the evaluation of delisting petitions. This problem is probably a consequence of the "flexible, multiple factor" approach that the Agency takes in listing wastes in the first place. See supra note 29. If it is unclear why a waste has been listed in the first place, then it will similarly be unclear what standards EPA should use to delist that waste.
In practice, the Agency relied for years on an internal computer model called the Vertical and Horizontal Spread to evaluate delisting petitions. This practice was held unlawful in McLouth Steel Products Corp. v. Thomas, 838 F.2d 1317, 18 ELR 20473 (D.C. Cir. 1988). The Agency has since begun to apply a new model called the Composite Model of Landfills. The model is fraught with inconsistencies and extreme assumptions, however, and the Agency has not disclosed much of the information that underlies the model. See Mark Shere, A Reassessment of Environmental Risk Assessment, 19 HARV. ENVTL. L. REV. (forthcoming July 1995).
33. Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Proposed Rule, 57 Fed. Reg. 21450 (proposed May 20, 1992).
34. See, e.g., Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Dye and Pigment Industries, 59 Fed. Reg. 66072, 66105 (Dec. 22, 1994); Unified Agenda, Regulatory Information Service Center, 59 Fed. Reg. 57003, 57181 (Nov. 14, 1994) (statement of Vice President Al Gore regarding EPA's current regulatory agenda); Land Disposal Restrictions Phase II, 59 Fed. Reg. 47982, 47986 (Sept. 19, 1994).
35. 1980 Final Rule, supra note 16, at 33114.
36. 40 C.F.R. § 261.33 (1994).
37. See Hazardous Waste Management System; Identification and Listing of Hazardous Waste, 50 Fed. Reg. 18378 (proposed Apr. 30, 1985) [hereinafter the EPA Proposed Spent SolventRule]. In the case of certain F listings, the "technical grade" extends to wastes that contain a specified percentage of particular listed chemicals. See infra note 44 and accompanying text. Like EPA, in this Dialogue we use the terms "technical grade" or "pure form" interchangeably. Many listed wastes do not have any "technical grade," however, because they do not correspond to any commercial chemical product. For these wastes, only the term "pure form" would apply.
38. United States v. Bethlehem Steel Corp., 38 F.3d 862, 870, 24 ELR 21499 (7th Cir. 1992).
39. 40 C.F.R. § 261.3(a)(2)(iii) (1994).
40. Certain wastes are listed "solely because [they] exhibit[] one or more of the characteristics of hazardous waste." Id. This class of listed wastes is treated like characteristic wastes for purposes of the mixture rule — mixtures containing the wastes are considered non-hazardous when they lose the characteristic. Id.
41. 1980 Final Rule, supra note 16, at 33123 (emphasis added).
42. EPA Proposed Spent Solvent Rule, supra note 37, at 18378 n.2.
43. Letter from John P. Lehman, Director, EPA Hazardous and Industrial Waste Division, to Theodore H. Mueller, Safety Kleen Corp. (July 21, 1981), adopted as Agency policy through public notice in EPA Proposed Spent Solvent Rule, supra note 37, at 18378.
44. EPA Proposed Spent Solvent Rule, supra note 37, at 18378.
45. This example is also part of a thorough discussion in the Magistrate's decision in United States v. Recticel Foam Corp., 858 F. Supp. 726, 25 ELR 20093 (E.D. Tenn. 1993). As the Magistrate described, the mixture rule applies only "when spent solvents are mixed after use." Id. at 731, 25 ELR at 20095 (emphasis in original). EPA has stated this point explicitly: If a company "mixes spent solvent after use, the mixed spent solvent wastes are . . . [hazardous] pursuant to the 'mixture rule.'" EPA Proposed Spent Solvent Rule, supra note 37, at 18380.
46. Hazardous Waste Management System; Identification and Listing of Hazardous Waste, 50 Fed. Reg. 53315 (Dec. 31, 1985). In his current response, Satterfield fails to acknowledge EPA's express extension of the solvent listings to include 10 percent mixtures. He thus claims that the affirmance of certain counts of a jury conviction in United States v. Goodner Bros. Aircraft, Inc., 966 F.2d 380, 22 ELR 21201 (8th Cir. 1992), supports a broad mixture principle. Satterfield, supra note 4, at 10266. This argument is misleading, to say the least. These counts concerned the F002 listing, which expressly includes mixtures containing at least 10 percent methylene chloride. The mixture in that case "contained 50% to 70% methylene chloride." Goodner, 966 F.2d at 386, 22 ELR at 21203. As the court explained, the conviction stood only because of the express, 10 percent threshold in the F002 listing. Id. For the other counts, where there was any chance the jury relied on a broader mixture principle, the court reversed. Id. at 383-85, 22 ELR at 21202-03.
47. United States v. Bethlehem Steel Corp., 38 F.3d 862, 869, 24 ELR 21499, 21502 (7th Cir. 1994).
48. EPA Proposed Spent Solvent Rule, supra note 37, at 18380.
49. We believe that courts will disregard "sham" mixtures or other artifices designed purely to evade the regulatory scheme, just as courts will ignore sham transactions in other areas of the law.
50. See supra text accompanying notes 35-38.
51. See supra note 45.
52. 1980 Final Rule, supra note 16, at 33114.
53. Id.
54. See, e.g., Community for Creative Non-Violence v. Watt, 670 F.2d 1213, 1216 (D.C. Cir. 1982) ("It is axiomatic that an agency is bound by its own rules and policies.").
55. 5 U.S.C. § 553(b), ELR STAT. APA § 553(b). See Shell Oil Co. v. U.S. Environmental Protection Agency, 950 F.2d 741, 746-47, 22 ELR 20305, 20306 (D.C. Cir. 1991, as amended 1992).
56. Shell Oil, 950 F.2d at 752, 24 ELR at 20310.
57. Hazardous Waste Management System; Definition of Hazardous Waste; "Mixture" and "Derived-From" Rules, 57 Fed. Reg. 7628 (Mar. 3, 1992). As the citation indicates, EPA did not actually publish the "interim final" rule in the Federal Register until March 3, 1992. For purposes of this Dialogue, we ignore the gap between February 18 and March 3, 1992.
58. Shell Oil, 950 F.2d at 752, 24 ELR at 20310.
59. Pub. L. No. 102-389, 106 Stat. 1571, 1602 (Oct. 6, 1992).
60. Id.
61. See, e.g., United States v. Goodner Bros, Aircraft, Inc., 966 F.2d 380, 384-85, 22 ELR 21201, 21202-03 (8th Cir. 1992).
62. See Mobil Oil Corp. v. U.S. Environmental Protection Agency, 35 F.3d 579, 585, 24 ELR 21472, 21475 (D.C. Cir. 1994).
63. The D.C. Circuit described the Chafee Amendment as stating "afirm intent" that the interim final rule "remain in effect until October 1, 1994, when [it] will be replaced." Id. at 583, 24 ELR at 21474. The continued operation of the interim final rule after October 1, 1994, is thus contrary to Congress' "firm intent."
64. 5 U.S.C. § 553(b)(3)(B), ELR STAT. APA § 553(b)(3)(B).
65. Unfortunately, it is a routine matter for EPA to fail to comply with deadlines in court orders and statutes. Even though the conduct is clearly unlawful, courts are often reluctant to impose any sanction.
66. Recent criticism in this area includes the charge that administrative law has
been unduly preoccupied . . . with the question of administrative procedure. [T]he legal culture continues to lack a solid understanding of the substantive purposes of the regulatory programs, the pathologies to which these programs are subject, the forces that bring about those pathologies, and the consequences of regulation for the real world.
Cass Sunstein, Administrative Substance, 1991 DUKE L.J. 607, 608. Much of this criticism applies to Satterfield's analysis.
67. See Mobil Oil Co. v. U.S. Environmental Protection Agency, 35 F.3d at 581, 24 ELR at 21473 (stating that under the mixture rule, "a substance that was mixed with a listed hazardous waste . . . waste be regulated as hazardous regardless of whether the mixture . . . 'posed a substantial present or potential hazard to human health or the environment'" (quoting 42 U.S.C. § 6903(5), ELR STAT. RCRA § 1004(5)).
68. 42 U.S.C. § 6903(5), ELR Stat. RCRA § 1004(5).
69. It is a standard canon of construction that in interpreting statutes, "words grouped in a list should be given a related meaning." Radiology Ctr., S.C. v. Stifel, Nicolaus & Co., 919 F.2d 1216 (7th Cir. 1990). See also Sacramento Regional County Sanitation Dist. v. Reilly, 905 F.2d 1262, 1268, 20 ELR 21113, 21116 (9th Cir. 1990) (stating that "where general words follow an enumeration of specific terms, the general words are read as applying only to other items akin to those specifically enumerated").
70. "RCRA defines the scope of EPA's regulatory discretion: In formulating rules, the clearly expressed intent of Congress binds agencies as it binds courts." Shell Oil Co. v. U.S. Environmental Protection Agency, 950 F.2d 741, 747, 22 ELR 20305, 20306 (D.C. Cir. 1991, as amended 1992).
71. See, e.g., Mobil Oil, 35 F.3d at 581, 24 ELR at 21473; 1980 Final Rule, supra note 16, at 33095.
72. See, e.g., Health Equity Resources v. Sullivan, 927 F.2d 963, 965 (7th Cir. 1991). This is another rule of law that Satterfield ignores. He asserts instead that the only remedy for a futile administrative procedure is "to reform the regulatory system." Satterfield, supra note 4, at 10263. He cites no authority for this novel proposition.
73. 1980 Final Rule, supra note 16, at 33095.
74. More precisely, we believe that the mixture rule is open to challenge as applied to waste mixtures that pose no legitimate risk in cases where the delisting procedure did not provide a practical remedy. Such "as applied" challenges may be brought in response to enforcement actions even though the time period for challenging the facial validity of a regulation may have lapsed. See, e.g., Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028, 1033, 14 ELR 20740, 20742 (7th Cir. 1984) (concluding that when a company has "no actual controversy with the EPA at th[e] time . . . [it] could not be faulted for not suing then even if . . . regulations must always be challenged at the earliest opportunity").
75. Satterfield, supra note 3, at 10714.
76. Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Proposed Rule, 57 Fed. Reg., 21450, 21451, (proposed May 20, 1992).
77. Id. at 21500.
78. See Alan Hoskin et al., Estimated Risk of Occupational Fatalities Associated with Hazardous Waste Site Remediation, 14 RISK ANALYSIS 1011, 1016 (1994) (concluding that "fatality risks to workers engaged in remediation . . . are orders of magnitude greater than the . . . human cancer criterion often used" to determine the supposed need for remediation projects); Thomas Mar et al., Physical Injury Risk Versus Risk From Hazardous Waste Remediation: A Case History, 17 REGULATORY TOXICOLOGY AND PHARMACOLOGY 130, 133-34 (1993) (calculating that the excavation of hazardous materials at a specific waste site might cause 28 vehicle-related injuries in the hope of preventing 2 nonmelanoma skin cancers).
79. See, e.g., STEPHEN BREYER, BREAKING THE VICIOUS CIRCLE: TOWARD EFFECTIVE RISK REGULATION 23 (1993)(citing studies suggesting that a 1 percent increase in unemployment, sustained over five years, will cause an additional 19,000 heart attacks and 1,100 suicides during that period).
80. See, e.g., Ralph L. Keeney, Mortality Risks Induced by Economic Expenditures, 10 RISK ANALYSIS 147, 154-55 and table VI (1990). These figures appear reasonable. With health care costs currently running at about 14 percent of the gross national product, a regulation that takes $ 7 million from the total economy would reduce health care resources by about $ 1 million on a straight percentage basis. One million dollars is quite a few medical exams, and it appears realistic to conclude that removing this much money from the resources available for medical care will result in one premature death.
81. Satterfield criticizes the Magistrate's recommendation in United States v. Recticel Foam Corp. that the criminal indictment be dismissed. 858 F. Supp. 726, 25 ELR 20093 (E.D. Tenn. 1993). He also appears to conclude that theEighth Circuit was wrong to vacate the criminal convictions in United States v. Goodner Bros. Aircraft, Inc., 966 F.2d 380, 22 ELR 21201 (8th Cir. 1992).
82. Satterfield similarly disagrees with the decision in United States v. Bethlehem Steel Corp., 38 F.3d 862, 24 ELR 21499 (7th Cir. 1994). In that case, the district court imposed a penalty of $ 1.8 million on the hazardous waste counts, and issued an injunction that would have required more than $ 10 million in work. The appeals court reversed the lower court.
83. In Bethlehem Steel, for example, the company presented reams of data to the district court showing that the "filter cake" sludge from its wastewater treatment plant was innocuous — the equivalent of fertilizer. The government's enforcement attorneys responded: "It is not necessary to address Defendant's claims that the sludges . . . do not "pose any real world risk to anyone or anything.'" U.S. Opposition to Defendant's Motions for Partial Summary Judgment at 38, United States v. Bethlehem Steel Corp., 829 F. Supp. 1023, 24 ELR 20251 (N.D. Ind. 1993) (No. H90-0326). Instead, the enforcement attorneys based their case strictly on the regulatory presumption of hazard, regardless of what the test data might show. Id.
84. Satterfield, supra note 3, at 10713.
85. Id. at 10713 n.27. In the footnote, Satterfield argues that any change in the physical character of a hazardous waste should "arguably" be considered "treatment," which is subject to its own set of regulatory requirements. We will not explore this claim further, except to note that Recticel Foam specifically rejects it. 858 F. Supp. 726, 25 ELR 20093. It is enough to observe that the treatment argument is inconsistent with Satterfield's claim that common sense shows that a hazardous waste stays "hazardous" no matter what.
86. Satterfield concedes this much. Satterfield, supra note 3, at 10717. In fact, Satterfield goes further by stating that "EPA rejected that [1978] proposal in its 1980 regulations." Satterfield, supra note 4, at 10263. He continues, however, to miss the significance of the point. As discussed in the text, final rules are supposed to logically extend the proposals on which they are based — not reject the proposals and substitute something entirely new. If the 1980 final rule is interpreted in ways that conflict with the 1978 proposal, the validity of the conflicting provisions is destroyed under the logical outgrowth doctrine.
87. Obviously the mixture rule was a "logical outgrowth" of EPA's 1980 final rules. EPA explicitly included the written mixture rule in those final rules — and this was held unlawful in Shell Oil Co. v. U.S. Environmental Protection Agency, 950 F.2d 741, 22 ELR 20305 (D.C. Cir. 1991, as amended 1992).
88. Satterfield, supra note 3, at 10715.
89. 950 F.2d at 749, 22 ELR at 20308.
90. Id. at 751-52, 22 ELR at 20309.
91. 1980 Final Rule, supra note 16, at 33095.
92. In re Hardin County, RCRA (3008) Appeal No. 93-1, ELR ADMIN. MAT. II 40313 (EPA, EAB Apr. 12, 1994). Although the judges on the Board produced a split opinion, they all agreed on this issue. Two of the judges concluded: "the mixture rule governed the universe of regulated facilities rather than only clarifying when a facility was no longer subject to regulation." Id. at 40318 (Judges Nancy Firestone and Edward Reich) (emphasis in original). The third judge agreed: "I conclude . . . that the [] claim that the mixture rule only clarifies the duration of the Agency's jurisdiction over waste mixtures is at odds with preamble language decreeing the role a regulatory necessity." Id. at 40319 (Judge Ronald L. McCallum).
93. Mining Waste Exclusion Under Subtitle C of RCRA; Notice of Porposed Rulemaking, 54 Fed. Reg. 15336 (Apr. 17, 1989).
94. Satterfield also ignores the fact that EPA itself defended the mixture rule — and a related regulation, called the "derived-from" rule — in Shell Oil by arguing that the rules "are reasonable, when in their absence, these mixtures and derived-from wastes would go unregulated." And "EPA . . . reasonably concluded that without [these rules], mixtures and derived-from wastes would simply escape regulation." EPA's Main Appellate Brief at 34, 40, Shell Oil Co. v. U.S. Environmental Protection Agency, 950 F.2d 741, 22 ELR 20305 (D.C. Cir. 1991, as amended 1992) (Nos. 80-1532 et al.).
95. 1980 Final Rule, supra 16, at 33095.
96. Satterfield, supra note 3, at 10715.
97. Id.
98. In his current response, Satterfield continues to ignore EPA's repeated conclusion about the role of the mixture rule, including the Hardin County decision. Instead, he claims "confusion" on this issue based on an EPA enforcement attorneys' brief and an EPA staff attorney's comment at a seminar. Satterfield, supra note 4, at 10264. But the arguments of EPA's enforcement and staff lawyers cannot override EPA's published interpretations and adjudications. As unanimous Supreme Court has concluded: "Congress has delegated to the administrative official and not to appellate counsel the responsibility for elaborating and enforcing statutory commands." Bowen v. Georgetown University Hospital, 488 U.S. 204, 212-13 (1988). The only confusion on this issue is Satterfield's confusion about what constitutes a valid source of regulatory interpretation by EPA.
99. United States v. Nordic Village, 503 U.S. 30 (1992).
100. Freytag v. Commissioner, 501 U.S. 868 (1991).
101. Satterfield, supra note 3, at 10713, 10717, 10718.
102. See United States v. Bethlehem Steel Corp., 38 F.3d 862, 871, 24 ELR 21499, 21503 (7th Cir. 1994) (rejecting the doctrine as a replacement for the mixture rule); United States v. Recticel Foam Corp., 858 F. Supp. 726, 738-39, 25 ELR 20093, 20099 (E.D. Tenn. 1993) (same).
103. Satterfield, supra note 3, at 10717.
104. Id. at 10713.
105. Proposed Guidelines and Regulations and Proposal on Identification and Listing, 43 Fed. Reg. 58945, 58960 (proposed Dec. 18, 1978).
106. In the Agency's words, EPA "concluded that it would be inappropriate to consider a delisting petition effective until EPA has taken some affirmative action in response." 1980 Final Rule, supra note 16, at 33117.
107. In re Hardin County, Ohio, RCRA (3008) Appeal No. 93-1 ELR ADMIN. MAT. II 40313 (EPA, EAB Apr. 12, 1994).
108. Satterfield, supra note 4, at 10263 n.50.
109. "To say that the agency is interpreting a preexisting regulation does not mean that judicial review of that interpretation is barred simply because a direct challenge to the rule itself would be untimely." Chemical Waste Management v. U.S. Environmental Protection Agency, 869 F.2d 1526, 1538, 19 ELR 20641 (D.C. Cir. 1989). The public is "not required . . . to anticipate every construction which the agency might later place upon its regulations." Id.
110. See Chemical Waste, 869 F.2d at 1526, 1531, 1538 n. 14, 19 ELR at 20641, 20642, 20647 n. 14 (D.C. Cir. 1989).
111. Satterfield, supra note 3, at 10713-14.
112. Id. at 10714 n.34; Chemical Waste, 869 F.2d at 1538, 19 ELR at 20647; New Mexico v. Watkins, 969 F.2d 1122, 1132-33, 22 ELR 21262, 21267 (D.C. Cir. 1992).
113. Chemical Waste, 869 F.2d at 1538, 19 ELR at 20647; New Mexico, 969 F.2d at 1132-33, 22 ELR at 21267.
114. United States v. Bethlehem Steel Corp., 38 F.3d 862, 871, 24 ELR 21499, 21504 (7th Cir. 1994).
115. The civil complaint in Bethlehem Steel, for example, was one of three that the U.S. Department of Justice filed and announced in a press conference two weeks before the November 1990 mid-term elections.