24 ELR 10712 -- EPA's Mixture Rule: Why the Fuss?

24 ELR 10712 | Environmental Law Reporter | copyright © 1994 | All rights reserved


EPA's Mixture Rule: Why the Fuss?

James E. Satterfield

Mr. Satterfield is Senior Associate Editor of ELR -- The Environmental Law Reporter. After receiving a J.D. from Columbia University in 1983, he practiced corporate law in New York City for seven years. The author wishes to express his gratitude to Adam Babich for his advice in the preparation of this Comment.

[24 ELR 10712]

For over a decade, the U.S. Environmental Protection Agency's (EPA's) "mixture rule" clarified the status under the Resource Conservation and Recovery Act1 (RCRA) of mixtures containing listed hazardous waste and nonhazardous solid waste.2 But the rule's recent vacatur and repromulgation have created a significant gap in the rule's coverage. Because the U.S. Court of Appeals for the D.C. Circuit vacated it ab initio, the rule does not cover conduct that occurred before EPA's 1992 repromulgation. To resolve disputes over the management of mixed solid and hazardous waste that occurred before the repromulgation,lawyers must determine the status of such mixtures in the absence of a mixture rule.

The D.C. Circuit did not address this issue when it vacated the rule because it based its decision on purely procedural grounds. But since then, EPA and the courts have addressed this issue several times. Even before the vacatur, EPA and the U.S. Department of Energy (DOE) addressed the status of hazardous waste mixtures to which the rule does not apply.

This Comment begins with a brief review of the rule's history. It then analyzes the regulatory and common-sense principles underlying the rule and the application of those principles to waste mixtures that the rule does not cover. Next, it examines EPA and court analyses of the status of mixed waste absent a mixture rule. It concludes that common sense and longstanding regulatory principles require that most mixtures containing hazardous waste must be managed as hazardous waste even without a mixture rule.

Background

The Promulgation, Vacatur, and Repromulgation of the Mixture Rule

In 1976, Congress directed EPA to "develop and promulgate criteria for identifying the characteristics of hazardous waste, and for listing hazardous waste, which should be subject to the provisions of [RCRA Subtitle C]."3 EPA responded with proposed regulations in 19784 and final regulations in 1980.5 The 1980 regulations included the mixture rule, which provides that mixtures of listed hazardous waste and nonhazardous solid waste are themselves hazardous waste for purposes of RCRA Subtitle C.6

Industry challenged the mixture rule almost immediately in Shell Oil Co. v. Environmental Protection Agency,7 but the D.C. Circuit deferred briefing, waiting almost 10 years before issuing its final opinion. In that opinion, the court held that EPA had failed to comply with the Administrative Procedure Act's (APA's) notice-and-comment requirements when it issued the rule, because it had not included mixture provisions in the proposed regulations issued for comment8 and the mixture rule was neither implicit in, nor a "logical outgrowth" of, those proposed regulations.9 The court vacated the rule and suggested that EPA consider "reenacting [it] … on an interim basis under the 'good cause' exemption of 5 U.S.C. § 553(b)(3)(B) pending full notice and opportunity for comment."10

The Agency took the suggestion. In March 1992, it reissued the rule with an April 28, 1993, "sunset" date.11 But eight months later, it removed the interim rule's sunset provision, stating that parties wishing to comment on the rule needed more time to evaluate proposed rule revisions.12

Challenge to the Repromulgated Rule

In 1993, a group of trade associations and industrial corporations challenged the repromulgated mixture rule. In Mobil Oil Corp. v. U.S. Environmental Protection [24 ELR 10713] Agency,13 they argued that EPA had exceeded its authority by reissuing the rule without notice and comment under the APA's "good cause" exemption.14 The D.C. Circuit held their challenge moot.15 The court held that Congress had enacted the rule in a 1992 EPA appropriations bill, which provided that the rule "shall not be terminated or withdrawn until revisions are promulgated and become effective.…"16 But the court left unanswered a number of questions raised by the Shell decision.

The Effects of Shell

In Shell, the D.C. Circuit recognized "the dangers that may be posed by a discontinuity in the regulation of hazardous wastes" without the mixture rule.17 What the court may not have recognized was the full scope of that discontinuity.

When EPA reissued the rule in 1992, it believed that it was ensuring the rule's uninterrupted effectiveness. Some parties had asked whether the Shell decision was retroactive. Was the mixture rule effective between its initial issuance in 1980 and the D.C. Circuit's vacatur in 1991? The Agency answered "yes."18

The U.S. Court of Appeals for the Eighth Circuit, however, answered "no." In United States v. Goodner Brothers Aircraft, Inc.,19 the court held that in vacating the mixture rule, the D.C. Circuit had declared it void ab initio.20 Accordingly, the Eighth Circuit reversed a criminal conviction for RCRA violations because it was unclear whether the jury had relied on the mixture rule.21

In United States v. Recticel Foam Corp.,22 a federal magistrate judge in the Eastern District of Tennessee agreed that the Shell decision was retroactive. He concluded that a regulation not promulgated pursuant to the proper notice-and-comment procedures has no "force or effect of law" and therefore is void ab initio.23

The magistrate judge addressed another question raised by Shell: What effect does the vacatur of the federal mixture rule have on the federal enforcement of the rule's state counterparts? In Recticel, the federal government argued that Tennessee had issued a mixture rule of its own and that this rule provided federal prosecutors with legal authority to prosecute defendants for RCRA violations.24 The magistrate judge rejected this argument, concluding that the state mixture rule was not part of the state's federally approved RCRA program, because it extended the coverage of the state program beyond that of federal law, which contained no valid mixture rule.25 Thus, the federal government could not enforce the state rule.

An effect of Shell that the magistrate judge did not have occasion to address was its impact on state programs that simply incorporated the federal mixture rule by reference. EPA has acknowledged that wastes not picked up by the federal program because of the invalidation of the federal mixture rule might also escape these state programs.26

Therefore, the question arises: If no federal or state mixture rule applies to mixtures of hazardous waste and nonhazardous solid waste created before the 1992 repromulgation of the mixture rule, is there another basis for regulating them under Subtitle C?

Common Sense

Common Sense and Agency Policy

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 many nonhazardous materials. You have not gotten rid of the hazardous waste; it is just surrounded by other material. This is common sense.27

EPA has followed this common-sense approach for over a decade. Its mixture rule treats mixtures of listed hazardous waste and nonhazardous solid waste as hazardous waste. Its "continuing jurisdiction" principle provides that "[a listed] hazardous waste will remain a hazardous waste" until delisted.28 And its "contained-in" policy29 provides [24 ELR 10714] that nonwaste media (such as soil or groundwater) that contain listed hazardous waste must be managed as hazardous waste.30

The D.C. Circuit recognized the consistency of this approach in Chemical Waste Management, Inc. v. U.S. Environmental Protection Agency.31 The court held that the contained-in policy is just "one application of a general principle, consistently adhered to, that a hazardous waste does not lose its hazardous character simply because it changes form or is combined with other substances."32

Radioactive Mixed Waste

The logic of this approach was apparent to EPA and the DOE when they determined the status of hazardous waste mixed with radioactive material. The agencies could not rely on the mixture rule because the rule by its terms applies only to mixtures of hazardous waste and nonhazardous solid waste. Under RCRA § 1004(27),33 most radioactive waste is not solid waste. Therefore, the agencies relied on common sense.34

The DOE reasoned that characterizing radioactive mixed waste as nonhazardous waste "would have foreclosed the application of RCRA to that [waste] irrespective of whether the associated non-radiological environmental hazard was significant."35 This would not have been in keeping with RCRA's remedial purposes.36 The DOE determined that RCRA governs the hazardous waste "component" of mixtures of hazardous and radioactive waste, while the Atomic Energy Act governs the radioactive waste "component."37 As a practical matter, the DOE's determination required that mixtures of radioactive and hazardous waste be managed as hazardous waste.38

Fulfilling RCRA's Remedial Purposes

It fulfills the remedial purposes of RCRA to require that mixtures of listed hazardous waste and other material be managed as hazardous waste. "RCRA is a remedial statute, and as such must be liberally construed to effectuate the remedial purpose for which it was enacted."39 These purposes include "requiring that hazardous waste be properly managed"40 and "assuring that hazardous waste practices are conducted in a manner which protects human health and the environment."41 Preventing hazardous waste from escaping regulation when its nature is essentially unchanged42 fulfills those purposes.

Judicial Support for Treating Mixed Waste as Hazardous Absent the Mixture Rule

Several courts have recognized the logic of this principle and upheld it. In Chemical Waste Management,43 the D.C. Circuit upheld the contained-in policy against an APA challenge. The court held the policy "reasonable" and "entirely consistent with the agency's general regulatory framework, which emphasizes that a continuing presumption of hazardousness attaches to hazardous waste which changes form or is combined with other substances."44

The U.S. District Court for the Western District of Louisiana accepted this principle in United States v. Marine Shale Processors, Inc.45 The court held that hazardous waste mixed with nonhazardous waste is hazardous waste even without the mixture rule.46 The court noted that a contrary ruling would lead to absurd results that "would thwart the purposes of "RCRA."47

In United States v. Bethlehem Steel Corp.,48 the U.S. [24 ELR 10715] District Court for the Northern District of Indiana took the same position. The court acknowledged that "a hazardous waste does not lose its hazardous character simply because it changes form or is combined with other substances."49 The court noted that "EPA has long had the policy that once wastes are listed as hazardous, they are presumed to remain hazardous."50 Although the U.S. Court of Appeals for the Seventh Circuit vacated this part of the district court's decision on appeal, in doing so it misconstrued EPA policy and misinterpreted the D.C. Circuit's decision in Shell.51

Treating Mixed Waste as Hazardous Absent the Mixture Rule: The Criticism and the Response

The Purpose of the Mixture Rule

If mixtures of listed hazardous waste and nonhazardous solid waste should be managed as hazardous waste even absent the mixture rule, why did EPA issue the mixture rule in the first place? Didn't EPA, the agency charged with administering RCRA, say in the preamble to its 1980 rulemaking that "[w]ithout such a rule, generators could evade Subtitle C requirements simply by commingling listed wastes with nonhazardous solid waste"?52 Didn't it say in 1992 that "[w]ithout a 'mixture' rule, generators of hazardous waste could potentially evade regulatory requirements by mixing listed hazardous waste with nonhazardous solid waste"?53

* EPA's 1980 Rulemaking. EPA's explanations for the mixture rule must be considered as a whole. It is misleading to select a few choice quotations and argue that the Agency saw the mixture rule as the sole basis for regulating hazardous mixtures. Rather, the Agency saw the rule as necessary to clarify its intention with respect to hazardous waste mixtures. As one court said, "EPA promulgated the mixture rule out of an abundance of caution in order to clarify that the regulatory scheme governing hazardous wastes encompassed listed wastes which were combined with other solid wastes."54 EPA itself said this in the preamble to its 1980 rulemaking: "The waste mixtures provision is a clarification which has been added in response to inquiries about whether mixtures of hazardous and nonhazardous wastes would be subject to Subtitle C requirements."55 This statement is clear.

It is less clear what the Agency meant when it said, "Without such a rule, generators could evade Subtitle C requirements simply by commingling listed wastes with nonhazardous solid waste."56 It is unlikely that the Agency was referring to the formal mixture rule it was promulgating, because the immediately preceding sentence did not mention the mixture rule. That sentence referred to EPA's intention at the time it issued the proposed regulation: "Although it was not expressly stated in the proposed regulation, EPA intended waste mixtures containing listed hazardous wastes to be considered a hazardous waste and managed accordingly."57 This intention was probably the "rule" to which EPA was referring.

* EPA's 1992 Rulemaking. EPA's 1992 rulemaking, which repromulgated the mixture rule, must also be interpreted as a whole. In that rulemaking, the Agency said:

Without a "mixture" rule, generators of hazardous waste could potentially evade regulatory requirements by mixing listed hazardous waste with nonhazardous solid waste to create a waste that arguably no longer meets the listing description but continues to pose a serious hazard and does not exhibit any of the four characteristics.58

Later it said, "If the [mixture and derived-from rules] were not in effect, the federal regulations would still apply to listed hazardous wastes when the wastes were generated, but the status of these wastes under subtitle C after they were managed or mixed would be thrown into question."59 If common sense requires that mixtures containing hazardous waste be managed as hazardous waste, why would the invalidation of the mixture rule throw the status of such mixtures into question?

The reason is that generators might misinterpret the invalidation of the mixture rule as the equivalent of releasing hazardous waste mixtures from Subtitle C regulation. Several times in the 1992 rulemaking, EPA refers to its concern that generators might see the invalidation of the mixture rule as a way to escape Subtitle C:

Without a "mixture" rule, generators of hazardous waste could perhaps evade regulatory requirements by mixing hazardous wastes with non-hazardous waste and claiming that the mixture was no longer hazardous, even though it poses environmental hazards.… [I]f the "mixture" and "derived-from" rules were not in effect, some wastes might be mistakenly classified as non-hazardous and disposed of in a municipal landfill or unregulated industrial landfill. EPA could find it extremely difficult to track these disposals, so that any environmental problems they caused might be exacerbated by delay and could ultimately require more costly cleanups.60

EPA was concerned with the practical problems this misinterpretation of the Shell decision would cause. The simplest way to address these problems was to repromulgate the mixture rule, which EPA did.

What About Shell?

But didn't the D.C. Circuit in Shell say that the mixture rule was not a "logical outgrowth" of EPA's proposed [24 ELR 10716] definition of hazardous waste?61 If the mixture rule is not a logical outgrowth of the proposed definition, how can the principle that underlies the mixture rule -- the principle that hazardous waste continues to be hazardous waste no matter where you put it -- be a logical interpretation of RCRA?

In Shell, the D.C. Circuit focused on the shift in emphasis from EPA's proposed definition to its final regulation. The proposed definition emphasized characteristic hazardous waste; the final definition emphasized listed hazardous waste.62 The mixture rule may not be a logical outgrowth of a hazardous waste definition based on hazardous characteristics, but it is a logical outgrowth of a hazardous-waste definition based on listing. Indeed, the Shell court said, "A system that would rely primarily on lists of wastes and waste-producing processes might imply inclusion of a waste until it is formally removed from the list. The proposed regulations, however, did not suggest such a system."63

What About Recticel?

How, then, does one construe the magistrate judge's report and recommendation in Recticel? In Recticel, the magistrate judge found that a mixture of three waste streams, one of which constituted listed hazardous waste, was not hazardous waste.64 The magistrate judge first concluded that the mixture was not itself listed hazardous waste, because EPA -- the magistrate judge asserted -- intended the mixture rule to cover such mixtures.65 The magistrate judge then concluded that EPA's continuing jurisdiction principle, which is contained in EPA's hazardous waste definition at 40 C.F.R. § 261.3(c), did not cover the mixture.

The magistrate judge used a flow chart published in an appendix to EPA's hazardous waste regulations to determine whether § 261.3(c) applied to the Recticel waste.66 For § 261.3(c) to apply, one must answer "yes" to one of three questions in the chart: Is the substance at issue characteristic hazardous waste? Is it listed hazardous waste? Is it a mixture covered by the mixture rule?67 For the Recticel mixture, the magistrate judge answered "no" to each of these questions.68

The magistrate judge, however, erred in his analysis. He correctly noted that the mixture of the three waste streams contained a listed hazardous waste,69 but he misapplied the continuing jurisdiction principle and he made a classic logical mistake in interpreting EPA's flow chart.

Before deciding whether the continuing jurisdiction principle applies to the mixture of the three waste streams, he should have decided whether it applies to the listed hazardous waste that he found existed in the mixture.70 When you follow EPA's flow chart, you see that the continuing jurisdiction principle would apply to that mixture. Because the continuing jurisdiction applies, the listed hazardous waste component of the mixture continues to be listed waste until delisted. And in this case, no delisting occurred.

The magistrate judge's logical fallacy was assuming that because the mixture rule did not apply, there was no basis for considering the mixture to be hazardous waste. In essence, he reasoned: If a valid mixture rule exists, mixtures of listed hazardous waste and nonhazardous solid waste are hazardous waste; if no mixture rule exists, mixtures of listed hazardous waste and nonhazardous solid waste are not hazardous waste. This is a classic logical fallacy. Aristotle termed it the "fallacy of the consequent."71 It is tantamount to saying: If an object is an apple, it is therefore a fruit; if an object is not an apple, it is therefore not a fruit.

Just because the mixture rule did not apply to the Recticel mixed waste did not mean that no other basis existed for finding that it constituted hazardous waste. Under common-sense principles, listed hazardous waste does not cease to be hazardous waste simply because you combine it with other material.

But the magistrate judge asserted that if an underlying principle existed for treating mixtures as hazardous waste, there was no reason for EPA to promulgate the mixture rule. The answer to this has already been given.72 EPA meant the mixture rule to be a clarification. Nevertheless, the magistrate judge relied on the testimony of a former EPA employee that EPA had no jurisdiction over such mixtures without the mixture rule.73 But how much weight should be afforded such testimony? Should courts put former government officials on the stand when they are called on to apply government regulations? Should courts put former members of Congress on the stand when applying statutes that may be unclear? Surely this is not the way to apply administrative law. The Agency has spoken. In a series of rules and policies it has expressed a consistent principle, and this principle is supported by simple, common sense.

There may be an additional clue to the magistrate judge's misinterpretation of EPA's hazardous waste regulations. The government asserted that a further basis for hazardous waste regulation was the presence of "U" waste in the waste mixture. The magistrate judge rejected the government's argument, finding that the U waste listing did not apply. The listing provision, he noted, applies to commercial chemical products in their pure form that are discarded as described in 40 C.F.R. § 261.2(a)(2)(i).74 He reasoned that the substances at issue were not in their pure form when discarded; they were first mixed with other waste.75

His mistake was misinterpreting the term "discarded" that appeared in the listing provision. The magistrate judge seemed to interpret the term discarded to mean ultimate [24 ELR 10717] disposal of the mixed waste.76 But EPA has defined discarded in its regulations. In fact, it defined the term in the subparagraph to which the listing provision specifically refers. That subparagraph, 40 C.F.R. § 261.2(a)(2)(i), defines "discarded material" to include material that is abandoned77 and states that the term "abandoned" is explained in § 261.2(b). Section 261.2(b) provides that the term abandoned includes being disposed of; burned or incinerated; or "[a]ccumulated, stored or treated (but not recycled) before or in lieu of being abandoned by being disposed of, burned, or incinerated."78

The defendant did discard the U waste before mixing it with the other wastes, because the defendant had stored it. Although it is unclear from the magistrate judge's report and recommendation how the U waste was stored, such chemicals must have been contained in something after the defendant decided to dispose of them but before the defendant added them to the barrels containing the other waste. The U waste had already been "discarded," and thus was already hazardous waste before it was mixed with other waste streams. And under 40 C.F.R. § 261.3(c), it remained hazardous waste even after mixing.

What About the Circuit Court Opinion in Bethlehem?

In Bethlehem,79 the Seventh Circuit vacated the district court's decision in part, holding that defendant-appellant's mixed wastewater treatment sludges did not constitute listed hazardous waste. The court said that "EPA itself seems to concede that although it meant to include waste mixtures in the [Subtitle C] listings, without a separate rule specifying that such mixtures are hazardous, the language of the listing itself fails to reach such mixtures."80 The court added:

We find the reasoning of the Shell Oil opinion persuasive on the point that the regulation of waste mixtures is simply not a logical outgrowth of the proposed definition of hazardous waste, and that without the explicit mixture rule, the definition leaves a major loophole through which waste mixtures could slip. Therefore, we must reject the notion that the policy behind the mixture rule is "embodied" as a general principle within the definition and that such a principle may operate to reach wastes that would have been covered by the mixture rule, but for its invalidation.81

The problem with the court's reasoning is that the D.C. Circuit in Shell did not say what the Seventh Circuit believes it said. The D.C. Circuit did say that the mixture rule was not a logical outgrowth of EPA's proposed regulation: The proposed regulation emphasized characteristic hazardous waste, and the mixture rule is based on combinations that include listed hazardous waste.82 The D.C. Circuit concluded from this that EPA had not given proper notice as required by the APA.83 It, therefore, vacated the mixture rule, but it did not go further and say what happens without a mixture rule.

The D.C. Circuit did refer to the "dangers that may be posed by a discontinuity in the regulation of hazardous wastes" when it suggested that EPA consider reenacting the mixture rule under the APA's good cause exemption.84 Is this tantamount to saying that hazardous waste mixtures are unregulated absent the mixture rule? Certainly the language is unclear. The best answer is that the court was not faced with that question and did not decide it. Whatever dangers the court may have had in mind area matter of pure speculation.85

The Seventh Circuit further erred by concluding that the general principle underlying the mixture rule is not embodied in the definition of hazardous waste because the mixture rule is not a logical outgrowth of the proposed definition of hazardous waste.86 As the D.C. Circuit recognized in Shell, the fact that the mixture rule is not a logical outgrowth of the proposed definition does not mean that it is not a logical outgrowth of the final definition.87 If the mixture rule is a logical outgrowth of the final definition, surely the principle underlying it is too.

Finally, the Seventh Circuit misconstrued the continuing jurisdiction principle. It said, "The principle of continuing jurisdiction applies not to mixtures of hazardous and nonhazardous solid wastes, but to mixtures of hazardous waste and environmental media, such as soil and groundwater."88 It, thus, confused the continuing jurisdiction principle with EPA's contained-in policy. The contained-in policy applies to mixtures of hazardous waste and environmental media.89 The continuing jurisdiction principle is not so limited. It appears in § 261.3(c)(1) of EPA's definition of hazardous waste without any such qualification.90

Why the Confusion?

Why are there so many problems with interpreting the definition of hazardous waste? The usual answer is that RCRA is a complicated statute.91 This is true, but sometimes [24 ELR 10718] it is portrayed as being more complex than it really is. To determine whether a substance is hazardous waste for purposes of RCRA involves several steps. EPA has tried to simplify this for the regulated community in a series of diagrams and policy statements. It issued the mixture rule to clarify the scope of its hazardous waste definition. But behind all of this -- behind the mixture rule, the continuing jurisdiction principle, and the contained-in policy -- is a simple principle: Hazardous waste continues to be hazardous waste no matter where you put it.

Conclusion

For over 10 years, EPA has recognized the principle that combinations of listed hazardous waste and nonhazardous material should be managed as hazardous waste. The mixture rule, the continuing jurisdiction principle, and the contained-in policy are all expressions of this principle. The DOE has acknowledged this principle, as have several courts. In an area of sometimes confusing complexity, this simple principle can be the light that guides the legal traveller through even the darkest tunnel of regulatory analysis.

1. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012.

2. This Comment does not discuss EPA's "derived-from" rule, which the Agency issued simultaneously with the mixture rule. 45 Fed. Reg. 33084 (May 19, 1980); 40 C.F.R. § 261.3(c)(2)(i) (1993). Although the two rules raise several common issues and their histories are closely connected -- they were vacated and repromulgated simultaneously -- the derived-from rule raises many separate issues that are best left for an article focusing on that rule.

3. 42 U.S.C. § 6921(a), ELR STAT. RCRA § 3001(a).

4. 43 Fed. Reg. 58946 (Dec. 18, 1978).

5. 45 Fed. Reg. 33084 (May 19, 1980).

6. 40 C.F.R. § 261.3(a)(2)(iv) (1993).

7. 950 F.2d 741, 22 ELR 20305 (D.C. Cir. 1991, as amended 1992).

8. Id. at 750, 22 ELR at 20308.

9. Id. at 752, 22 ELR at 20309.

10. Id., 22 ELR at 20310.

11. 57 Fed. Reg. 7628 (Mar. 3, 1992).

12. Id. at 49278 (Oct. 30, 1992).

13. No. 92-1211 et al., slip op., 24 ELR 21472 (D.C. Cir. Sept. 23, 1994).

14. Brief of Petitioners and Intervenors at 40-51, Mobile Oil Corp. v. U.S. Environmental Protection Agency, Nos. 92-1211 et al. (D.C. Cir. petitioners and intervenors' brief filed Oct. 12, 1993).

15. Mobil Oil Corp. v. U.S. Environmental Protection Agency, No. 92-1211 et al., slip op. at 8, 24 ELR 21472, 21475 (D.C. Cir. Sept. 23, 1994).

16. Id. (quoting Departments of Veteran Affairs and Housing and Urban Development, and Independent Agencies Appropriations, 1993, Pub. L. No. 102-389, 106 Stat. 1571, 1603 (1992)).

17. 950 F.2d at 752, 22 ELR at 20310.

18. 57 Fed. Reg. 7628, 7630 (Mar. 3, 1992).

19. 966 F.2d 380, 22 ELR 21201 (8th Cir. 1992).

20. Id. at 384-85, 22 ELR at 21202-03.

21. Id.

22. No. CR. 2-92-78, 1993 WL 723785, at *1 (E.D. Tenn. Aug. 10, 1993). The U.S. District Court for the Eastern District of Tennessee has not accepted or denied the magistrate's recommendations.

23. Id. at *18.

24. Id. at *14.

25. Id. at *17; see also In re Hardin County, No. RCRA-V-W-89-R-29, 1994 WL 157572, at *1 (EPA Apr. 12, 1994).

26. 57 Fed. Reg. 7628, 7630 (Mar. 3, 1992). Moreover, some state statutes have limited the scope of state hazardous waste definitions to the scope of the federal regulations promulgated under RCRA. See, e.g., N.M. STAT. ANN. § 74-4-4(A) (Michie 1992).

27. But what if mixing the hazardous waste with other material changes the hazardous waste? Congress has already addressed this question in RCRA's definition of "treatment." Under § 1004(34), "treatment" includes "any method … designed to change the physical, chemical, or biological character or composition of any hazardous waste so as to neutralize [it] or so as to render [it] nonhazardous, … amenable for storage, or reduced in volume." 42 U.S.C. § 6903(34), ELR STAT. RCRA § 1004(34). If mixing listed hazardous waste with nonhazardous waste renders the hazardous component nonhazardous, this is arguably treatment and thus subject to RCRA treatment requirements. 42 U.S.C. §§ 6924-6925, ELR STAT. RCRA §§ 3004-3005; see Jeffrey M. Gaba, The Mixture and Derived-From Rules Under RCRA: Once a Hazardous Waste Always a Hazardous Waste?, 21 ELR 10033, 10036-37 (Jan. 1991).

But is this process designed to render the hazardous waste nonhazardous or amenable for storage? It would be difficult to argue that it is not if the facility was constructed so that pipes conveyed the hazardous waste stream into a pond or other container for storage with nonhazardous waste. Clearly, this process is no accident. The intent behind it is apparent from the convenience of putting hazardous and nonhazardous waste in one place and managing it as nonhazardous waste.

28. 40 C.F.R. § 261.3(c)(1) (1993).

29. This policy has been referred to as the "contained-in" policy, the "contained-in" rule, the "contained-in" interpretation, and the "contained-in" principle. See Randolph L. Hill, An Overview of RCRA: The "Mind-Numbing" Provisions of the Most Complicated Statute, RCRA DESKBOOK 8 (1991) (contained-in policy); 57 Fed. Reg. 21450, 21453 (May 20, 1992) (contained-in rule); Gaba, supra note 27, at 10042 (citing an EPA Superfund guidance document that refers to the Agency's contained-in interpretation); 57 Fed. Reg. 37194, 37225 (Aug. 18, 1992) (contained-in principle). For the sake of simplicity, this Comment uses the term contained-in policy.

30. 57 Fed. Reg. 21450, 21453 (May 20, 1992).

31. 869 F.2d 1526, 19 ELR 20641 (D.C. Cir. 1989).

32. Id. at 1539, 19 ELR at 20648. The contained-in policy may also suffer from an APA infirmity if it is based on the original mixture and derived-from rules.

33. 42 U.S.C. § 6903(27), ELR STAT. RCRA § 1004(27).

34. In 1986, EPA announced its determination that radioactive mixed wastes are subject to RCRA regulation. 51 Fed. Reg. 24504 (July 3, 1986). It required authorized state RCRA programs to regulate such wastes. Id. In New Mexico v. Watkins, the D.C. Circuit, deferring to EPA, held that EPA's 1986 notice constituted a regulatory change for purposes of determining whether a facility had "interim status" under RCRA. 969 F.2d 1122, 1133, 22 ELR 21262, 21267 (D.C. Cir. 1992). The court noted that in 1988, EPA had determined the 1986 notice to be a regulatory change because of "the level of confusion surrounding regulation of radioactive mixed waste prior to that time." Id. (citing 53 Fed. Reg. 37045, 37046 (Sept. 23, 1988)). The Agency had identified the 1986 notice as "the first official pronouncement to the general public that RCRA permitting requirements are applicable to radioactive mixed waste." 53 Fed. Reg. at 3706.

35. 52 Fed. Reg. 15937, 15939 (May 1, 1987).

36. Id. at 15940.

37. Id.

38. Id. at 15937.

39. Id. (citing Westinghouse Elec. Corp. v. Pacific Gas & Elec. Co., 326 F.2d 575 (9th Cir. 1964)).

40. 42 U.S.C. § 6902(a)(5), ELR STAT. RCRA § 1003(a)(5).

41. Id. § 6902(a)(4), ELR STAT. RCRA § 1003(a)(4).

42. For a discussion of how the mixture rule is regulated if the hazardous waste is changed, see supra note 27.

43. 869 F.2d 1526, 19 ELR 20641 (D.C. Cir. 1989).

44. Id. at 1540-41, 19 ELR at 20648.

45. No. CIV. A. 90-1240, 1994 WL 419910, at *1, *3-4 (W.D. La. Aug. 1, 1994), vacated in part on other grounds on reconsideration, No. 90-1240, slip op. (W.D. La. Aug. 30, 1994).

46. The court wrote:

As I have indicated previously both off and on the record, a listed hazardous waste does not cease to be subject to RCRA requirements simply because it is mixed with some other substance. EPA promulgated the mixture rule out of an abundance of caution in order to clarify that the regulatory scheme governing hazardous wastes encompassed listed wastes which were combined with other solid wastes. In concluding that the hazardous wastes received by [defendant] remained hazardous and subject to the storage permit requirement after being mixed with other wastes, I do not rely upon the invalidated mixture rule. I interpret the statute and regulations as including such wastes even absent the mixture rule.

Id. at *3.

47. Id. ("Carried to the extreme, the interpretation urged by [defendant] would produce the ridiculous result that one could receive a listed hazardous waste, add a drop of water to it, and store that waste without having either a storage permit or interim status.")

48. 829 F. Supp. 1023, 24 ELR 20251 (N.D. Ind. 1993), vacated in part, No. 93-2260, slip op., 24 ELR 21499 (7th Cir. Sept. 26, 1994).

49. Id. at 1032, 24 ELR at 20255 (quoting Chemical Waste Management, Inc. v. U.S. Environmental Protection Agency, 869 F.2d 1526, 1539, 19 ELR 20641, 20648 (D.C. Cir. 1989)). At least one commentator has acknowledged this: "If wastes could become nonhazardous simply by being mixed with other wastes, there would be a tremendous incentive simply to dilute hazardous wastes to avoid regulation. Potentially large quantities of hazardous waste could escape regulation." Gaba, supra note 27, at 10035.

50. 829 F. Supp. at 1032, 24 ELR at 20255.

51. See infra notes 79-90 and accompanying text.

52. 45 Fed. Reg. 33084, 33095 (May 19, 1980).

53. 57 Fed. Reg. 7628 (Mar. 3, 1992).

54. United States v. Marine Shale Processors, Inc., No. CIV. A. 90-1240, 1994 WL 419910, at *3 (W.D. La. Aug. 1, 1994) (emphasis added), vacated in part on other grounds on reconsideration, No. 90-1240, slip op. (W.D. La. Aug. 30, 1994).

55. 45 Fed. Reg. 33084, 33095 (May 19, 1980) (emphasis added).

56. See supra note 52 and accompanying text.

57. 45 Fed. Reg. 33084, 33095 (May 19, 1980).

58. 57 Fed. Reg. 7628 (Mar. 3, 1992).

59. Id. at 7629.

60. Id. at 7628-29 (emphasis added).

61. 950 F.2d at 752, 22 ELR at 20309; see supra note 9 and accompanying text.

62. 950 F.2d at 751-52, 22 ELR at 20309.

63. Id. at 752, 22 ELR at 20309.

64. No. CR.2-92-78, 1993 WL 723785, at *8 ("I find that the material at issue in this case constitutes a post-use mixture of a listed spent solvent with other nonhazardous solid waste streams" (emphasis added)). Elsewhere, the magistrate judge says that one of the waste streams is conceded to be listed waste for purposes of the motion he is considering. Id. (emphasis added).

65. Id.

66. Id. at *10-11.

67. Id.

68. Id.

69. See supra note 64 and accompanying text.

70. See supra note 64 and accompanying text.

71. 23 ENCYCLOPEDIA BRITANNICA, The History and Kinds of Logic 226, 273 (15th ed. 1992).

72. See supra notes 52-60 and accompanying text.

73. United States v. Recticel Foam Corp., at *1, *10.

74. Id. at *19-20.

75. Id. at *20.

76. "[The methylene chloride or TDI] was mixed with two nonhazardous waste streams and one hazardous waste stream and then discarded." Id. (emphasis added).

77. 40 C.F.R. § 261.2(a)(2)(i) (1993).

78. Id. § 261.2(b) (emphasis added).

79. No. 93-2260, slip op., 24 ELR 21499 (7th Cir. Sept. 26, 1994).

80. Id. at 15, 24 ELR at 21503.

81. Id. at 17-18, 24 ELR at 21503.

82. 950 F.2d at 751-52, 22 ELR at 20309; see supra notes 62-63 and accompanying text.

83. 950 F.2d at 752, 22 ELR at 20310.

84. Id.

85. EPA has suggested a number of dangers that could arise from the mistaken belief that mixed waste need not be managed as hazardous waste absent the mixture rule. See supra notes 58-60 and accompanying text.

86. The court wrote:

We find the reasoning of the Shell Oil opinion persuasive on the point that the regulation of waste mixtures is simply not a logical outgrowth of the proposed definition of hazardous waste, and that without the explicit mixture rule, the definition leaves a major loophole through which waste mixtures could slip. Therefore, we must reject the notion that the policy behind the mixture rule is "embodied" as a general principle within the definition and that such a principle may operate to reach wastes that would have been covered by the mixture rule, but for its invalidation.

United States v. Bethlehem Steel Corp., No. 93-2260, slip op. at 17-18, 24 ELR 21499, 21503 (7th Cir. Sept. 26, 1994) (emphasis added).

87. 950 F.2d at 751-52, 22 ELR at 20309; see supra notes 62-63 and accompanying text.

88. No. 93-2260, slip op. at 18, 24 ELR at 21503.

89. 57 Fed. Reg. 21450, 21453 (May 20, 1992).

90. 40 C.F.R. § 261.3(c)(1) (1993).

91. See Hill, supra note 29.


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