Mobil Oil Corp. v. U.S. E.P.A., s. 92-1211

• Decision Date: 23 September 1994
• Docket Number: 92-1229,92-1230,Nos. 92-1211,92-1234 and 92-1237,92-1233,s. 92-1211
• Citation: 35 F.3d 579
• Parties: , 308 U.S.App.D.C. 262, 63 USLW 2215, 24 Envtl. L. Rep. 21,472 MOBIL OIL CORPORATION, et al., Petitioners v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent. American Iron and Steel Institute, et al., Intervenors. And Consolidated Cases.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 579

35 F.3d 579

39 ERC 1481, 308 U.S.App.D.C. 262, 63

USLW 2215,

24 Envtl. L. Rep. 21,472

MOBIL OIL CORPORATION, et al., Petitioners v. U.S. ENVIRONMENTAL PROTECTION AGENCY, Respondent American Iron and Steel Institute, et al., Intervenors And Consolidated Cases.

Nos. 92-1211, 92-1229, 92-1230, 92-1233, 92-1234 and 92-1237.

United States Court of Appeals District of Columbia Circuit.

Argued March 7, 1994.

Decided Sept. 23, 1994.

Petitions for Review of an Order of the Environmental Protection Agency.

Michael W. Steinberg and Donald J. Patterson (for American Min. Congress), Washington, DC, argued the cause for consolidated petitioners and intervenors. With them on the briefs were Edward M. Green, Roderick T. Dwyer, and Nancy D. Tammi (for American Min. Congress), Karl S. Bourdeau and Barton C. Green (for American Iron and Steel Institute), Ralph J. Colleli, Jr., G. William Frick, and Hunter Prillaman (for American Petroleum Institute), David F. Zoll, Washington, DC, and Ronald A. Shipley, Germantown, MD (for Chemical Mfrs. Ass'n), Douglas H. Green and William R. Weissman (for Edison Elec. Institute), James K. Jackson (for Mobil Oil Corp.), Richard A. Flye (for The Fertilizer Institute), and Paul E. Gutermann and John N. Moore, Washington, DC (for Zinc Corp. of America and Horsehead Resource Development Co.).

Thomas S. Llewellyn (for Mobil Oil Corp.), Gordon D. Quin, Whippany, NJ (for The Fertilizer Institute), John N. Hanson (for American Min. Congress), and Norman L. Rave, Jr., Washington, DC (for Edison Electric Institute), Washington, DC, entered appearances.

Mary Elizabeth Ward and Scott A. Schachter, Attys., U.S. Dept. of Justice, Washington, DC, argued the cause for respondents. With them on the brief was Lois J. Schiffer, Acting Asst. Atty. Gen., Washington, DC. Barry M. Hartman and Caroline H. Wehling, Counsel, U.S. Environmental Protection Agency ("EPA"), and Raymond Ludwiszewski, Acting Gen. Counsel, EPA, Washington, DC, entered appearances for respondent.

Eli D. Eilbott and David R. Case, Washington, DC, were on the brief for intervenor Hazardous Waste Treatment Council.

Before EDWARDS, BUCKLEY, and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Petitioners raise numerous challenges to the "mixture" and "derived-from" rules promulgated by the Environmental Protection Agency under authority of Subtitle C of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. Secs. 6901-6992k (1988 & Supp. IV 1992). We do not address these challenges, however, because we conclude that subsequent congressional action has rendered the dispute moot. Petitioners American Mining Congress and The Fertilizer Institute also challenge the so-called "Bevill mixture rule," promulgated under the same authority, which we vacate in part.

I. BACKGROUND

RCRA provides a comprehensive scheme for handling solid wastes. As part of this regime, Subchapter III, 42 U.S.C. Secs. 6921-6939b (1988 & Supp. IV 1992) ("Subtitle C"), subjects hazardous wastes to stringent cradle-to-grave regulation. The statute defines "hazardous waste" as

a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics 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 treated, stored, transported, or disposed of, or otherwise managed.

42 U.S.C. Sec. 6903(5) (1988). Subtitle C also established a two-step process for the identification of hazardous wastes: The EPA would first promulgate criteria for identifying the "characteristics" of hazardous waste, "taking into account toxicity, persistence, and degradability in nature, potential for accumulation in tissue, and other related factors such as flammability, corrosiveness, and other hazardous characteristics." Id. Sec. 6921(a) (1988). Then, on the basis of those criteria, the EPA would "promulgate regulations identifying the characteristics of hazardous waste, and listing particular hazardous wastes (within the meaning of section 6903(5) of this title), which shall be subject to the provisions of [Subtitle C]." Id. Sec. 6921(b)(1).

Pursuant to this mandate, the EPA issued proposed rules in 1978. 43 Fed.Reg. 58,946 (1978). In that proposal, the EPA stated that it would identify hazardous wastes on the basis of the following characteristics: ignitability, corrosivity, reactivity and toxicity. 43 Fed.Reg. at 58,950, 58,955-57. Wastes displaying any of these characteristics were to be listed, as were wastes that independently satisfied the statutory definition of "hazardous waste" contained in 42 U.S.C. Sec. 6903(5). 43 Fed.Reg. at 58,955, col. 2. A listed waste would remain subject to Subtitle C regulation until it was certified to the EPA that the waste was "non-hazardous according to the results of each characteristic or property tested." 43 Fed.Reg. at 58,953, col. 3.

The EPA issued its final rule on May 19, 1980, in which it published a list of some 400 hazardous wastes. 45 Fed.Reg. 33,084, 33,122-27 (1980). The final rule also promulgated the "mixture" and "derived-from" rules. The mixture rule provided that a solid waste would be treated as hazardous if "[i]t is a mixture of solid waste and one or more [listed] hazardous wastes...." Id. at 33,119, col. 3. The derived-from rule provided that

[a]ny solid waste generated from the treatment, storage, or disposal of a hazardous waste, including any sludge, spill residue, ash, emission control dust or leachate (but not including precipitation run-off) is a hazardous waste.

45 Fed.Reg. at 33,120, col. 1. Thus a substance that was mixed with a listed hazardous waste or derived from a hazardous waste was to be regulated as a hazardous waste regardless of whether the mixture or derivative actually "[p]ose[d] a substantial present or potential hazard to human health or the environment...." 42 U.S.C. Sec. 6903(5). Any mixture or derived-from waste, however, could escape Subtitle C regulation through a "delisting" process. See 45 Fed.Reg. at 33,116, col. 3 (waste may be delisted if demonstrated that it is non-hazardous "based on the results of specific tests for each of the hazardous properties for which the waste was listed").

The initial promulgation of the mixture and derived-from rules was challenged on both substantive and procedural grounds. On December 6, 1991, we vacated both rules because the EPA had "entirely failed to comply with [the Administrative Procedure Act's] notice-and-comment requirements...." Shell Oil Co. v. EPA, 950 F.2d 741, 752 (D.C.Cir.1991). As we disposed of the case on procedural grounds, we did not determine whether the EPA had exceeded its authority under RCRA in issuing the rules.

On March 3, 1992, the EPA issued an "interim final rule," reinstating the vacated mixture and derived-from rules under authority of the APA's "good cause" exception, 5 U.S.C. Sec. 553(b)(3)(B), which permits the issuance of a rule without notice and prior opportunity for comment on a finding that such are "impractical, unnecessary, or contrary to the public interest." 57 Fed.Reg. 7,628, 7,628-29 (1992). In doing so, the EPA sought to obtain "the time to sort through more fully the implications of alternative regulatory approaches and understand the scope and effect of current Subtitle C rules." 57 Fed.Reg. at 7,630, col. 3. The EPA promised to publish options for modifying or replacing the rules by April 28, 1992; and it included a provision terminating the interim final rules on April 28, 1993 ("sunset provision"). Id.

The promised revisions were issued on May 20, 1992. These included a "Hazardous Waste Identification Rule" ("HWIR") that would effect "modifications to the RCRA regulatory framework which will address over-regulatory situations created by the 'mixture' and 'derived-from' rules." 57 Fed.Reg. 21,450, 21,452, col. 1 (1992). In the HWIR, the EPA conceded that the mixture and derived-from rules were overinclusive, resulting in a regime where "millions of tons of mixtures and derived-from residuals that must be managed as hazardous waste [under Subtitle C] because of their history (i.e., what they were mixed with or derived-from) may actually pose quite low hazards." Id. at 21,451, col. 3.

Five months later, on October 6, 1992, Congress adopted an amendment to an EPA appropriations bill that reads as follows:

EPA shall promulgate revisions to paragraphs (a)(2)(iv) [the mixture rule] and (c)(2)(i) [the derived-from rule] of 40 CFR 261.3, as reissued on March 3, 1992, by October 1, 1994, but any revision to such paragraphs shall not be promulgated or become effective prior to October 1, 1993. Notwithstanding paragraph (e) of 40 CFR 261.3 [the "sunset provision"], as reissued on March 3, 1992, paragraphs (a)(2)(iv) and (c)(2)(i) of such regulations shall not be terminated or withdrawn until revisions are promulgated and become effective in accordance with the preceding sentence. The deadline of October 1, 1994 shall be enforceable under section 7002 of the Solid Waste Disposal Act.

Pub.L. No. 102-389, 106 Stat. 1571, 1602 (Oct. 6, 1992) ("Chafee Amendment"). The EPA contends that this amendment codifies the mixture and derived-from rules, mooting petitioners' challenges thereto.

Three weeks later, the EPA issued notices announcing its withdrawal of the HWIR proposal and rescission of the sunset provision. 57 Fed.Reg. 49,280, 49,280, col. 1 (1992) (withdrawing HWIR proposal); 57 Fed.Reg. 49,278, 49,278, col. 1 (withdrawing the sunset provision). In both notices, the EPA announced its intent to promulgate revisions to the mixture and derived-from rules within 12 to 24 months. 57 Fed.Reg. at 49,278, col. 2; 57 Fed.Reg. at 49,280, col. 3.

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