| EPA's Continuing Jurisdiction Regulation: A Response to The Mixture Rule and the Environmental Code |
| James E. Satterfield |
| Mr. Satterfield is a 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. |
| [25 ELR 10262]
Can listed hazardous waste escape the requirements of Subtitle C1 of the Resource Conservation and Recovery Act (RCRA),2 without being delisted, simply by being mixed with other material? Under the mixture rule that the U.S. Environmental Protection Agency (EPA) issued in 1980,3 the answer is no. But the U.S. Court of Appeals for the District of Columbia invalidated the mixture rule in Shell Oil Co. v. U.S. Environmental Protection Agency,4 and the U.S. Court of Appeals for the Eighth Circuit held that Shell Oil applies retroactively.5 Although EPA reissued the mixture rule in 1992,6 and the D.C. Circuit upheld the reissued rule,7 the question remains: Were listed hazardous waste mixtures created before 1992 subject to Subtitle C? |
| In their Dialogue, Rebuttal: The Mixture Rule and the Environmental Code,8 Van Carson, Philip Schillawski, and Mark Shere argue that Subtitle C does not apply to these mixtures. In response to the Comment EPA's Mixture Rule: Why the Fuss?,9 which appeared in the December 1994 issue of ELR — The Environmental Law Reporter, they say that EPA cannot, based on unwritten principles, require that such mixtures be managed as hazardous waste. To subject such mixtures to Subtitle C, they say, would require the management of material that is not dangerous. |
| This Comment responds to that argument. It first examines EPA's regulations defining listed hazardous waste, specifically those regulations that determine how a listed hazardous waste becomes subject to RCRA Subtitle C and how it can escape the Subtitle C system. Next, it analyzes the application of those regulations to mixtures of listed hazardous waste and nonhazardous materials. It reviews the Rebuttal's arguments, and concludes that even absent the mixture rule, EPA regulations require that unless delisted, listed hazardous waste remains subject to Subtitle C even when mixed with other material. |
| Background |
| When Congress enacted RCRA in 1976, it required EPA to develop criteria for determining when hazardous waste is subject to RCRA Subtitle C. Specifically, it directed EPA to develop criteria for identifying the characteristics of hazardous waste and for listing hazardous waste that should be subject to Subtitle C.10 In 1980, EPA issued final regulations in response to that directive.11 |
| Reflecting Congress' directive, the regulations created a two-prong system for subjecting solid waste to Subtitle C. They provided that a solid waste is subject to Subtitle C if it exhibits certain hazardous waste characteristics12 or if it is included in EPA regulations listing hazardous wastes.13 In addition, they created two ways for waste to lawfully escape Subtitle C's requirements: If the waste is a hazardous waste because it exhibits hazardous waste characteristics (a characteristic hazardous waste), it can only escape Subtitle C if it ceases to exhibit those characteristics;14 if it is a hazardous waste because EPA included it in a regulatory list of hazardous wastes (a listed hazardous waste), it can only escape Subtitle C if it is delisted.15 Without going through the delisting process, a listed hazardous waste cannot escape Subtitle C, even if it stops exhibiting hazardous characteristics. As the Rebuttal points out, in 1978 EPA proposed a system that would have provided for automatically delisting solid waste after a demonstration that the [25 ELR 10263] waste is not hazardous, but EPA rejected that proposal in its 1980 regulations.16 |
| EPA's 1980 regulations included a specific regulation, 40 C.F.R. § 261.3(c)(1), that says that a listed hazardous waste remains a hazardous waste until delisted.17 This "continuing jurisdiction regulation"18 is still valid because no court has invalidated it and the time allowed to challenge it has long since passed.19 |
| The Response to the Arguments Raised in the Rebuttal |
| Essentially, the Rebuttal makes three arguments to support its proposition that without the mixture rule, listed hazardous waste can escape RCRA Subtitle C by being mixed with nonhazardous solid waste. First, it argues that some mixtures of listed hazardous waste and nonhazardous solid waste pose little danger and that subjecting them to Subtitle C is, thus, senseless. Second, it asserts that EPA regulations — absent the mixture rule — do not subject such mixtures to Subtitle C and that EPA may not base civil penalties or criminal convictions on unwritten principles. And third, it alleges that EPA interprets the mixture rule as necessary for subjecting mixtures that contain listed hazardous waste to Subtitle C.20 |
| The Danger Argument: Confusing Characteristic Hazardous Waste With Listed Hazardous Waste |
| The first argument the Rebuttal makes is that subjecting mixtures that contain listed hazardous waste to Subtitle C would unfairly regulate waste mixtures that pose relatively low risks.21 The Rebuttal asserts that the "only mixtures affected are those that do not exhibit any hazardous characteristic" under EPA tests.22 The Rebuttal is, in essence, confusing characteristic hazardous waste with listed hazardous waste. |
| EPA regulations provide two ways for hazardous waste to escape Subtitle C — one way for characteristic hazardous waste and one way for listed hazardous waste. A characteristic hazardous waste can only escape Subtitle C if it no longer exhibits hazardous waste characteristics. A listed hazardous waste can only escape Subtitle C if it goes through a delisting process.23 The Rebuttal suggests that a listed hazardous waste can escape Subtitle C through the exit for characteristic hazardous waste. This is contrary to EPA's regulations. If a listed hazardous waste mixture poses little risk, then the waste generator or manager should apply to delist it. |
| Unfortunately, EPA's delisting procedures are cumbersome and slow. But, although the expense created by EPA's failure to develop an efficient delisting process may point to a need to reform the regulatory system, it does not justify failing to comply with that system. |
| The Unwritten Principle Argument: The Basis for Subjecting Listed Hazardous Waste Mixtures to Subtitle C |
| The second argument the Rebuttal makes is that without the mixture rule, EPA regulations do not support subjecting [25 ELR 10264] listed hazardous waste mixtures to Subtitle C and that EPA may not base civil penalties or criminal convictions on unwritten principles.24 The Rebuttal claims that EPA's continuing jurisdiction regulation — 40 C.F.R. § 261.3(c)(1) — does not apply.25 |
| It asserts that § 261.3(c)(1) "means only that the presumption of legal hazard . . . does not lift automatically after submitting test data, as EPA had originally proposed."26 It, thus, seeks to diminish the significance of § 261.3(c)(1) and the delisting process. |
| But § 261.3(c)(1) is significant because it specifies the only way for a listed hazardous waste to escape Subtitle C — the delisting process.27 Under § 261.3(c)(1), a listed hazardous waste cannot escape Subtitle C simply by being mixed with other material. If it could, what function would the delisting process serve? More significantly, if mixing waste was a way around the delisting process, why didn't EPA include it in its regulations as a specific exclusion to § 261.3(c)(1)? Section 261.3(c)(1) does not contain an exception for mixtures, and the Rebuttal argues forcefully that EPA should not rely on unwritten principles. |
| The Agency Statements Argument: EPA's Position on the Mixture Rule's Significance |
| The third argument the Rebuttal makes is that EPA has taken the position that the mixture rule is indispensable for subjecting listed hazardous waste, when mixed with other material, to Subtitle C.28 It quotes statements EPA made in the preamble to the 1980 rulemaking that adopted the mixture rule and statements the federal government made in its brief in Shell Oil.29 But it ignores other statements the government made that the rule is not indispensable. In United States v. Bethlehem Steel Corp.,30 the federal government took the position that the mixture rule was not essential for subjecting mixtures to Subtitle C.31 In fact, as one EPA official has said, the Agency tried to have it both ways by asserting in some statements that the rule was necessary and in other statements that it was not.32 This only added confusion to an already complicated area of the law. |
| The only reasonable approach to EPA's conflicting statements is to conclude that they offer little guidance in deciding how to address waste mixtures absent the mixture rule. In fact, it is not even necessary to resort to the language of government briefs and agency preambles to resolve this issue. EPA's own regulations provide the answer: A listed hazardous waste remains a hazardous waste until delisted.33 It doesn't matter where you put it. |
| Case Law |
| The Rebuttal cites three federal circuit court decisions to support its argument: The D.C. Circuit's decision in Shell Oil, the Seventh Circuit's decision in Bethlehem Steel, and the Eighth Circuit's decision in United States v. Goodner Bros. Aircraft, Inc.34 |
| Shell Oil. In the portion of Shell Oil that addresses hazardous waste mixtures, the D.C. Circuit decided a narrow question: Did EPA violate the Administrative Procedure Act (APA)35 when it issued the mixture rule? The court held that it did.36 The court declined to decide whether EPA had exceeded its authority in issuing the rule,37 and the court did not decide whether other EPA rules apply to waste mixtures. |
| In deciding the narrow APA question, the court held that the mixture rule was not a logical outgrowth of EPA's proposed regulations.38 Because it was not a logical outgrowth of those proposed regulations and was not included in them, EPA had not given the public adequate notice.39 |
| Does this affect the validity of the continuing jurisdiction regulation — 40 C.F.R. § 261.3(c)(1)? No.40 The rule that the court invalidated is very different from EPA's continuing jurisdiction regulation. Under the mixture rule, vast amounts of nonhazardous solid waste can be transformed into hazardous waste by the mere addition of a speck of listed hazardous waste. Under the continuing jurisdiction regulation, however, only the speck is hazardous waste. Thus, once the hazardous waste is separated from the mixture, the nonhazardous waste component of the mixture could — absent the mixture rule and EPA's derived-from rule41 — be [25 ELR 10265] managed as nonhazardous waste. But until they are separated or delisted, 40 C.F.R. § 261.3(c)(1) requires that mixtures containing a hazardous waste component must be managed as hazardous. |
| Bethlehem Steel. In Bethlehem Steel, the Seventh Circuit held that a steel company did not violate RCRA by failing to comply with EPA regulations in managing electroplating wastewater that the company had mixed with other wastewater. The court held that the mixture was not subject to RCRA Subtitle C because the mixture itself was not listed hazardous waste and, although it contained listed hazardous waste, mixtures containing listed hazardous waste are not subject to Subtitle C absent the mixture rule, which did not apply in that case.42 |
| The Seventh Circuit did not directly address EPA's continuing jurisdiction regulation — 40 C.F.R. § 261.3(c)(1) — but it did hold that "no 'principle of continuing jurisdiction' is applicable to this case."43 The court reasoned that this principle of continuing jurisdiction only applies to mixtures of listed hazardous waste and environmental media. But the court was confusing this principle with EPA's contained-in policy, which provides that nonwaste media (such as soil and groundwater) that contain listed hazardous waste must be managed as hazardous waste.44 |
| The court also claimed to rely on the reasoning of Shell Oil. The Seventh Circuit implied that the D.C. Circuit had reasoned that "without the explicit mixture rule, the definition [of hazardous waste] leaves a major loophole through which waste mixtures could slip."45 But the D.C. Circuit did not say this. In the portion of its opinion addressing hazardous waste mixtures, the D.C. Circuit was only deciding a narrow APA question: Did EPA comply with the APA in promulgating the mixture rule? It held that the Agency did not comply with the APA because the rule was not contained in the proposed regulations and was not a logical outgrowth of those regulations. Whether EPA's continuing jurisdiction regulation was contained in the proposed regulations or was a logical outgrowth of the regulations is a moot point. The time to challenge it has passed.46 |
| The Seventh Circuit also held that the waste mixture at issue was not a listed hazardous waste because it did not meet the F006 delisting description — "wastewater treatment sludges from electroplating operations."47 It is not necessary to address the court's discussion of hazardous waste listings in order to refute the argument that listed hazardous waste — absent the mixture rule — can escape Subtitle C without delisting simply by being mixed with other material. The court's discussion of hazardous waste listings addresses whether a waste enters the Subtitle C system in the first place. The mixture rule and EPA's continuing jurisdiction regulation address the status of waste once it becomes listed hazardous waste and how it escapes Subtitle C after that. But it is important to note that the court misconstrued the listing descriptions, because the Rebuttal makes a similar mistake that affects how one perceives the regulation of waste mixtures. |
| The court noted that EPA's descriptions for listed hazardous waste designated as F001 through F005 specify when mixtures of certain spent solvents satisfy those listing descriptions. The court concluded from this that "when the EPA intends to include waste mixtures in its listings, it knows how to do so, and that in the F006 listing, such mixture language is conspicuously absent."48 |
| The Rebuttal places great stock in this argument. Based on statements EPA made when it amended its F001 through F005 listings to include mixtures, the Rebuttal suggests that it is EPA policy that unless otherwise stated, only "pure" or "technical grade" substances included in its listing descriptions are listed hazardous waste. But if this were so, why did EPA specifically state that P and U listed hazardous wastes only include pure or technical grade forms?49 And how does one apply the terms pure and technical grade to listed hazardous wastes such as electroplating wastewater treatment sludge (F006)? |
| When EPA uses the terms pure and technical grade, it applies them to listings that include specific chemical substances. P and U wastes include specific chemical substances,50 and F001 through F005 wastes — when those listings only applied to pure or technical grade forms — included specific chemical substances.51 EPA's other hazardous waste listings are different. They do not specify the chemical substances they include. They are generic descriptions of waste products.52 Although a substance such as vinyl chloride (U043) has a pure form, a substance such as electroplating wastewater treatment sludge (F006) clearly does not. |
| Goodner Bros. The Rebuttal also relies on the Eighth Circuit's decision in United States v. Goodner Bros. Aircraft, Inc. But Goodner Bros. cuts against the Rebuttal's argument. |
| In Goodner Bros., a jury found a corporation guilty of RCRA violations involving the disposal of hazardous waste without a permit and found an individual guilty of violations of the Comprehensive Environmental Response, [25 ELR 10266] Compensation, and Liability Act (CERCLA)53 involving the failure to notify the proper authorities of the release of a hazardous substance into the environment.54 The Eighth Circuit reversed the RCRA convictions, because it was unclear whether the jury, in determining that the waste at issue was a hazardous waste, had relied on an EPA listing description or on the invalidated mixture rule.55 The court, however, affirmed the CERCLA convictions, because the jury had clearly relied only on the listing description in finding that the individual had released a RCRA hazardous waste.56 (CERCLA § 101(14)(C) includes in its definition of "hazardous substance" RCRA listed hazardous waste.)57 Because the waste at issue was a mixture of a spent solvent — which by itself was clearly a listed hazardous waste — and other material, the import of the court's ruling is that hazardous wastes remain subject to Subtitle C even when they are components of mixtures that contain other substances. Indeed, the court specifically rejected the argument that the waste at issue was not a RCRA hazardous waste because it constituted a mixture of a listed hazardous waste and other material.58 The court held that "the in validation of the mixture rule does not affect the [CERCLA] convictions."59 |
| Conclusion |
| The Dialogue Rebuttal: The Mixture Rule and the Environmental Code suggests that absent EPA's mixture rule, a listed hazardous waste can escape RCRA Subtitle C simply by being mixed with other material. In this view, delisting waste would be unnecessary. But EPA regulations provide otherwise. EPA's continuing jurisdiction regulation — 40 C.F.R. § 261.3(c)(1) — provides that a listed hazardous waste remains a hazardous waste until delisted. It doesn't matter where you put it. |
| 1. 42 U.S.C. §§ 6921-6939e, ELR STAT. RCRA §§ 3001-3023. |
| 2. Id. §§ 6901-6992k, ELR STAT. RCRA § 11001-11012. |
| 3. 45 Fed. Reg. 33084 (May 19, 1980). The mixture rule, as repromulgated in 1992, is codified at 40 C.F.R. § 261.3(a)(2)(iv) (1994). See infra note 6 and accompanying text. |
| 4. 950 F.2d 741, 22 ELR 20305 (D.C. Cir. 1991, amended 1992). |
| 5. United States v. Goodner Bros. Aircraft, Inc., 966 F.2d 380,22 ELR 21201 (8th Cir. 1992). |
| 6. 57 Fed. Reg. 7628 (Mar. 3, 1992). |
| 7. Mobil Oil Corp. v. U.S. Environmental Protection Agency, 35 F.3d 579, 24 ELR 21472 (D.C. Cir. 1994). |
| 8. Van Carson et al., Rebuttal: The Mixture Rule and the Environmental Code, 25 ELR 10244 (May 1995). |
| 9. James E. Satterfield, EPA's Mixture Rule: Why the Fuss?, 24 ELR 10712 (Dec. 1994). |
| 10. 42 U.S.C. § 6921(a), ELR STAT. RCRA § 3001(a). |
| 11. 45 Fed. Reg. 33084 (May 19, 1980). |
| 12. 40 C.F.R. § 261.3(a)(2)(i) (1994). |
| 13. Id. § 261.3(a)(2)(ii). |
| 14. Id. § 261.3(d)(1). |
| 15. Id. § 261.3(d)(2). |
| 16. Carson et al., supra note 8, at 10246; see also 43 Fed. Reg. 58946, 58959-60 (Dec. 18, 1978). |
| 17. Section 261.3(c) provides: "Unless and until it meets the criteria of paragraph (d) of this section . . . (1) A hazardous waste will remain a hazardous waste." Section 261.3(d) provides: |
| Any solid waste described in paragraph (c) of this section is not a hazardous waste if it meets the following criteria: |
| (2) In the case of a waste which is a listed waste . . . [it does not exhibit any of the characteristics of hazardous waste identified in subpart C of this part and] it also has been excluded from paragraph (c) of this section under §§ 260.20 and 260.22 of this chapter. |
| Sections 260.20 and 260.22 provide for delisting. |
| 18. For readers' convenience, this Comment uses the term "continuing jurisdiction regulation" to refer to 40 C.F.R. § 261.3(c)(1). In briefs, the U.S. government has referred to this regulation as the "continuing jurisdiction principle." See, e.g., Brief of the United States at 46, United States v. Bethlehem Steel Corp., No. 93-2260 (7th Cir. U.S. brief filed Sept. 1, 1993). The Rebuttal puts much stock in the fact that the name continuing jurisdiction principle does not appear in EPA's regulations. Carson, supra note 8, at 10253. What is important, though, is not the name the government uses for this regulation, but the language of the regulation itself. |
| 19. 42 U.S.C. § 6976(a)(1), ELR STAT. RCRA § 7006(a)(1). In RCRA § 7006, Congress allowed parties 90 days to attack EPA's promulgation of RCRA regulations. The petitioners in Shell Oil complied with this provision when they challenged the mixture rule. Chemical Manufacturers Seek Review of EPA's Hazardous Waste Regulations, 11 Env't Rep. (BNA) 673 (Sept. 5, 1980). But 15 years have passed since EPA issued the continuing jurisdiction regulation. The time to challenge that regulation has long since passed. |
| Because parties may still challenge EPA's interpretation of a RCRA regulation more than 90 days after issuance, the Rebuttal suggests that the validity of the regulation itself is still open to challenge. Carson et al., supra note 8, at 10253. This is not correct, and the case the Rebuttal cites, Chemical Waste Management, Inc. v. U.S. Environmental Protection Agency, does not support that proposition. In Chemical Waste Management, the D.C. Circuit held that "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." 869 F.2d 1526, 1538, 19 ELR 20641, 20647 (D.C. Cir. 1989) (emphasis added). |
| 20. In passing, the Rebuttal also argues that the principle of continuing jurisdiction is not supported by two EPA policies cited in EPA's Mixture Rule: Why the Fuss? — the contained-in policy (or principle) and the radioactive mixed waste policy (or principle). Although the Rebuttal's discussion of these policies does not directly attack the principle of continuing jurisdiction, it is important to point out the fallacy underlying that discussion. The Rebuttal says: |
| 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. With the mixture rule vacated in Shell Oil, however, the foundation for these interpretive statements is gone. |
| Carson et al., supra note 8, at 10254. This is not correct. The contained-in policy and the radioactive mixed waste policy only apply to situations that the mixture rule does not cover. The contained-in policy provides that nonwaste media (such as soil or groundwater) that contain listed hazardous waste must be managed as hazardous waste. 57 Fed. Reg. 21450, 21453 (May 20, 1992). The radioactive mixed waste policy provides that RCRA governs the hazardous waste component of mixture of hazardous and radioactive waste and that the Atomic Energy Act governs the radioactive waste component of such mixtures. 52 Fed. Reg. 15937, 15940 (May 1, 1987). The mixture rule would not apply to these two types of mixtures, because it only applies to mixtures of listed hazardous waste and nonhazardous solid waste. Nonwaste media are not waste, and most radioactive waste is excluded from the RCRA definition of solid waste. See 42 U.S.C. § 6903(27), ELR STAT. RCRA § 1004(27). Thus, the validity of these two policies does not depend on the validity of the mixture rule. |
| 21. Carson et al., supra note 8, at 10244, 10250. |
| 22. Id. at 10250. |
| 23. See supra notes 14-19 and accompanying text. |
| 24. Carson et al., supra note 8, at 10244, 10251. |
| 25. Id. at 10253. |
| 26. Id. (emphasis added). |
| 27. See supra notes 12-17 and accompanying text. |
| 28. Carson et al., supra note 8, at 10252-53. |
| 29. Id. at 10252 & n.94. The Rebuttal claims that this author demonstrates "confusion about what constitutes a valid source of regulatory interpretation" by citing government briefs rather than In re Hardin County, which — the Rebuttal claims — is "EPA's most recent, most authoritative statement" on whether the continuing jurisdiction regulation applies to listed hazardous waste when mixed with other material. Id. at 10252, n.98. In Hardin County, however, two of the three judges said that "since the Shell Oil decision is not explicit on the effect, if any, of the 'contained-in' and 'continuing jurisdiction' rules on waste mixtures and our ultimate decision does not turn on this point, we need not and do not reach any final decision on this issue." In re Hardin County, RCRA (3008) Appeal No. 93-1, ELR ADMIN. MAT. II 40313 (EPA, EAB Apr. 12, 1994) (emphasis added). Unlike the Hardin County decision, the brief cited in this Comment contains the positionof the U.S. government on the point at issue here. And the portion of the Bowen case that the Rebuttal cites only stands for the proposition that courts need not accord Chevron-type deference to agency litigating positions. Bowen v. Georgetown Univ. Hospital, 488 U.S. 204, 212 (1988). |
| 30. 38 F.3d 862, 24 ELR 21499 (7th Cir. 1994). |
| 31. Brief of the United States, supra note 18, at 41-47. |
| 32. Tina Kaneen, Staff Attorney, Solid Waste and Emergency Response Division, EPA Office of General Counsel, Remarks at Mixed Emotions: EPA's Hazardous Waste Mixture Rule, a Seminar of the Environmental Law Institute Associates Program (Jan. 26, 1995) (tape on file with the Environmental Law Institute). |
| 33. 40 C.F.R. § 261.3(c)(1) (1994). |
| 34. 966 F.2d 380, 22 ELR 21201 (8th Cir. 1992). |
| 35. 5 U.S.C. §§ 500-596, 701-706, ELR STAT. ADMIN. PROC. §§ 500-596, 701-706. |
| 36. Shell Oil Co. v. U.S. Environmental Protection Agency, 950 F.2d 741, 752, 22 ELR 20305, 20309-10 (D.C. Cir. 1991, amended 1992). The court also held that a related rule, the derived-from rule, was invalid for the same reason. Id. The derived-from rule provides that solid waste generated from the treatment, storage, or disposal of hazardous waste is a hazardous waste. 40 C.F.R. 1261.3(c)(2)(i) (1994). |
| 37. 950 F.2d at 752, 22 ELR at 20309-10. |
| 38. Id. |
| 39. Id. |
| 40. See supra note 19. |
| 41. For a description of the derived-from rule, see supra note 36. |
| 42. United States v. Bethlehem Steel Corp., 38 F.3d 862, 869-71, 24 ELR 21499, 21502-04 (7th Cir. 1994). |
| 43. Id. at 871, 24 ELR at 21503. |
| 44. 57 Fed. Reg. 21450, 21453 (May 20, 1992). |
| 45. Bethlehem Steel, 38 F.3d at 871, 24 ELR at 21503. |
| 46. See supra note 19. |
| 47. Bethlehem Steel, 38 F.3d at 869-70, 24 ELR at 21502-03. |
| 48. Id. at 869, 24 ELR at 21502. |
| 49. 40 C.F.R. § 261.33(d), cmt. (1994). |
| 50. See id. § 261.33(e) (1994) (P wastes include such substances as benzyl chloride (P028) and calcium cyanide (P021)); id. § 261.33(f) (U wastes include such substances as acetone (U002) and vinyl chloride (U043)). |
| 51. 45 Fed. Reg. 33084, 33123 (May 19, 1980) (codified at 40 C.F.R. § 261.31). The Rebuttal cites the P, U, and F001 through F005 hazardous waste listings to support its argument that EPA's hazardous waste listings are limited to pure or technical grade forms unless otherwise specified. See Carson et al., supra note 8, at 10246-48. Citing, the preamble to EPA's 1985 proposed revision to the F001 through F005 listings, the Rebuttal states that EPA "has similarly interpreted its 'F' listings as applying only to the 'technical grade' of the listed material." Id. at 10246-47. But this preamble only discusses F001 through F005 wastes. 50 Fed. Reg. 18378 (Apr. 30, 1985). The Rebuttal also cites the Seventh Circuit's opinion in Bethlehem Steel to support its argument. Id. at 10247. In Bethlehem Steel, the Seventh Circuit said that a "facility may reasonably infer that when the EPA intends to include waste mixtures in its listings, it knows how to do so." 38 F.3d at 869, 24 ELR at 21502. But using this same logic, one could cite EPA's P and U hazardous waste listings and argue that when EPA intends to include only the pure and technical grade forms of substances in its listings, it knows how to do so. |
| 52. See 40 C.F.R. § 261.31(a) (1994); id. § 261.32. |
| 53. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405. |
| 54. United States v. Goodner Bros. Aircraft, Inc., 966 F.2d 380, 383, 386, 22 ELR 21201, 21202-03 (8th Cir. 1992). |
| 55. Id. at 383-85, 22 ELR at 21202-03. |
| 56. Id. at 386-87, 22 ELR at 21203-04. |
| 57. 42 U.S.C. § 9601(14)(C), ELR STAT. CERCLA § 101(14)(C). |
| 58. Goodner Bros., 966 F.2d at 386, 22 ELR at 21203. The Rebuttal implies that the Eighth Circuit upheld the CERCLA conviction because the paint waste the defendants disposed of was F002-listed hazardous waste, rather than waste containing a listed hazardous waste component. Carson et al., supra note 8, at 10248, n. 46. But, although the F002 listing description includes certain mixtures, it does not include mixtures that are not themselves spent solvents, even if they contain more than 10 percent methylene chloride. 50 Fed. Reg. 53315, 53317 (Dec. 31, 1985) ("this rule . . . expands the category of materials considered 'spent solvents' to include certain mixtures containing one or more of the listed solvents"). |
| In Goodner Bros., the paint waste, although it contained over 10 percent methylene chloride, was not a spent solvent. The defendant made this exact point and argued that the paint waste was, therefore, not a RCRA hazardous waste. But the Eighth Circuit found that the paint remover in the paint waste was a spent solvent and that it contained more than 10 percent methylene chloride. 966 F.2d at 386, 22 ELR at 21203. Thus, the paint remover constituted a listed hazardous waste, even though it was mixed with other materials in the paint waste. |
| 59. Goodner Bros., 966 F.2d at 386, 22 ELR at 21203. |
25 ELR 10262 | Environmental Law Reporter | copyright © 1995 | All rights reserved
