ELR Citation: ELR 21472
No(s). 92-1211 (D.C. Cir. Sep 23, 1994)

The court holds moot challenges to the mixture and derived-from rules that the U.S. Environmental Protection Agency (EPA) issued under the Resource Conservation and Recovery Act (RCRA), holds moot a challenge to EPA's rule applying the mixture rule to Bevill wastes mixed with listed hazardous waste, and vacates EPA's rule governing mixtures of Bevill waste with characteristic hazardous waste. EPA's mixture rule provides that mixtures of nonhazardous solid waste and listed hazardous waste are hazardous waste for purposes of RCRA Subtitle C. EPA's derived-from rule provides that waste generated from the treatment, storage, or disposal of hazardous waste is hazardous waste. In Shell Oil Co. v. Environmental Protection Agency, 22 ELR 20305 (D.C. Cir. 1991, amended 1992), the court vacated the mixture and derived-from rules. In Solite Corp. v. Environmental Protection Agency, 22 ELR 20376 (D.C. Cir. 1991), the court vacated the Bevill waste mixture rules. In May 1992, EPA repromulgated the rules under the Administrative Procedure Act's (APA's) "good-cause" exception from its notice-and-comment requirements. In October 1992, Congress adopted an amendment to an appropriations bill that provided that the mixture and derived-from rules shall not be terminated or withdrawn until revisions are promulgated and become effective. The court first holds that petitioners' challenges to the mixture and derived-from rules are moot because Congress expressed a firm intent that the two rules remain in effect until October 1, 1994, when they will be replaced by new rules that EPA is required to issue by that date. That purpose would be frustrated if courts remained free to vacate the interim final rule before the new rules came into effect, thereby creating a regulatory gap the appropriations bill amendment was enacted to prevent.

The court next holds that EPA's repromulgation of the Bevill/characteristic waste provision of the Bevill waste mixture rule was procedurally flawed. To repromulate that provision, EPA must comply with the applicable provisions of the APA. This does not necessarily require EPA to start from scratch and initiate new notice-and-comment proceedings. The APA's good-cause exception may be invoked on a finding that notice and public procedure thereon are unnecessary. If the original record is still fresh, a new round of notice-and-comment proceedings might be unnecessary. Such a finding, however, must be made by the Agency and supported in the record; it is not self-evident. Because EPA neither initiated a new rulemaking nor invoked the APA's good-cause exception in the record, the court vacates the Bevill/characteristic waste provision. The court holds, however, that petitioners' challenge to the Bevill/listed waste provision is moot because that provision is an interpretation of the mixture rule and preceded the appropriations bill amendment that enacted the mixture rule into law.

[Briefs in this litigation are digested at ELR PEND. LIT. 66304.]

Counsel for Petitioners
Michael W. Steinberg
Morgan, Lewis & Bockius
1800 M St. NW, Washington DC 20036
(202) 467-7000

Donald J. Patterson
Beveridge & Diamond
1350 I St. NW, Ste. 700, Washington DC 20005
(202) 789-6000

Counsel for Respondent
Mary E. Ward, Scott A. Schachter
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before EDWARDS, BUCKLEY, and RANDOLPH, Circuit Judges.