US v. Recticel Foam Corp.

• Decision Date: 10 August 1993
• Docket Number: Cr. No. 2-92-78.
• Citation: 858 F. Supp. 726
• Parties: UNITED STATES of America, Plaintiff, v. RECTICEL FOAM CORPORATION, a/k/a Foamex L.P., Steve Murphy, Chet Meyers, O.E. "Gene" Fox, Eldon Hall, Jim Van Hooser, and Steve Cansler, Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

858 F. Supp. 726

UNITED STATES of America, Plaintiff, v. RECTICEL FOAM CORPORATION, a/k/a Foamex L.P., Steve Murphy, Chet Meyers, O.E. "Gene" Fox, Eldon Hall, Jim Van Hooser, and Steve Cansler, Defendants.

Cr. No. 2-92-78.

United States District Court, E.D. Tennessee, at Greeneville.

August 10, 1993.

COPYRIGHT MATERIAL OMITTED

Guy W. Blackwell, Asst. U.S. Atty., Greeneville, TN, Paul S. Rosenzweig, Environmental Crimes Section, Washington, DC, for U.S.

David Eldridge, Charles Fels, Ritchie, Fels & Dillard, Knoxville, TN, Henry Killeen, Harris, Beach & Wilcox, Buffalo, NY, Judson Starr, Venable, Baetjer, Howard & Civiletti, Washington, DC, for Recticel Foam Corp.

Steven Oberman, Daniel & Oberman, Knoxville, TN, for Steve Murphy.

Jerry Laughlin, John Milburn, Greeneville, TN, for Chet Meyers.

Ralph Harwell, Knoxville, TN, for Gene Fox.

Herbert S. Moncier, Knoxville, TN, for Eldon Hall.

Ronald I. Meshbesher, Meshbesher & Spence, Minneapolis, MN, for Jim Van Hooser.

J. Ronnie Greer, Greeneville, TN, for Steve Cansler.

REPORT AND RECOMMENDATION

MURRIAN, United States Magistrate Judge.

This case is before the undersigned pursuant to 28 U.S.C. § 636(b), for a report and recommendation regarding disposition by the District Court of all dispositive pretrial motions. The motion of defendant, Recticel Foam Corporation ("RFC"), to dismiss counts 1 through 12 on the ground that the materials described in the indictment do not constitute a hazardous waste Doc. 122 is currently pending before this court. This matter came before the undersigned for an evidentiary hearing on Thursday, July 15, 1993. After considering the evidence presented, the arguments of counsel, and their memoranda of law, the following findings, conclusions and recommendation are made.

I. UNDISPUTED FACTS

Counts 1 through 12 of the indictment focus on activities at RFC Plant numbers 1 and 3. The following undisputed facts are quoted directly from RFC's brief in support of its motion to dismiss unless otherwise indicated Doc. 122A.

1. RFC Plant No. 1 produces flexible polyurethane foam slab stock from raw materials, which foam is used in furniture, carpet padding, and other items Doc. 122A, p. 5.

2. Flexible foam is produced by combining different grades of polyethylene glycol ("polyol") and toluene diisocyanate ("TDI"). These materials, and other chemicals such as flame retardants ... stimulate the chemical reaction and impart various physical characteristics into the foam, such as softness, rigidity, density, and resilience. Methylene chloride or freon was used as a blowing or foaming agent to give the foam its loft or density depending upon the appropriate formulation of the foam. Id.

3. During the production process, these foam ingredients were pumped from bulk storage tanks or 55-gallon drums to a continuous mixing head. The mixture of these ingredients was then pumped from the mixing head onto a foaming plate. The material then would begin to foam and flow onto a conveyor,.... The conveyor then took the foam to a cutoff saw, where it was cut to length. Id., at 5-6.

4. The production of foam generated several different process streams, all of which ultimately were collected in barrels located beneath the foam pouring site. The materials in the collection barrels came from three sources:

a. Pre-Flush. There is no dispute that this process stream is not a hazardous waste and, thus, not a subject of the current indictment.

b. Drainage. There is also no dispute that this process stream is not a hazardous waste and, thus, not a subject of the current indictment.

c. Flush. This process stream, which allegedly constituted an FOO2 listed hazardous waste that is the subject of the Indictment, is generated after a series of foam pours or at the end of the work day, when the mixing head is cleaned. On a typical day, Plant 1 pours sixty "buns" based on a single foam formulation. Before switching to a different formulation, the mixing head is purged of any foam ingredients by the introduction of additional polyol, methylene chloride, or freon (footnote omitted). These ingredients, including the purged material, are drained into the barrel beneath the foam line, where they are combined with the other process streams from the pre-flush and drainage streams id. at pp. 7-8.

5. RFC Plant No. 3 (the "Molded Operation") produces rigid urethane foam for use in car and boat seats, side panels, chairs and other products. The molded foam process uses the same primary and secondary ingredients as Plant No. 1, and the ingredients similarly are pumped to a mixing head. Unlike Plant No. 1, the foam was poured into a series of molds on a carousel beneath the mixing head id. at 8.

6. The molded foam process produces three separate process streams:

a. Pre-Flush. There is no dispute that this process stream is not a hazardous waste and, thus, not a subject of the current indictment.

b. Leakage. There is also no dispute that this process stream is not a hazardous waste and, thus, not a subject of the current indictment.

c. Flush. This ... process stream, which allegedly constituted an FOO2 listed hazardous waste, is generated after each pour and involves short bursts of methylene chloride used to purge the mixing head of remaining foam ingredients. This purged material also drains into the barrel or box beneath the foaming unit, where it is combined with the other streams from the pre-flush and leakage processes id. at 9.

7. For purposes of this motion only, RFC concedes that the Flush stream at both Plants as set forth above is a stream containing a spent solvent and that, therefore, the materials at issue in this case are a mixture of two non-hazardous waste streams (pre-flush and drainage) and a hazardous waste stream (flush) see Doc. 174, p. 1.

8. In light of no. 7, the issue before the court is a purely legal one ripe for decision.

The question squarely before the court at present is whether the mixture of two non-hazardous waste streams and one hazardous waste stream constitute an FOO2 listed hazardous waste under the appropriate Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901 et seq., regulations.

II. RCRA AND HAZARDOUS WASTE CLASSIFICATIONS

The objectives of RCRA are to

promote the protection of health and the environment and to conserve valuable material and energy resources by — inter alia,

. . . . .

(4) regulating the treatment, storage, transportation, and disposal of hazardous wastes which have adverse effects on health and the environment,....

42 U.S.C. § 6902(4). In an effort to obtain these objectives, the Environmental Protection Agency ("EPA") is directed 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,....

42 U.S.C. § 6921. As a result of this directive, the EPA has promulgated regulations which explain what materials constitute hazardous waste. See 40 C.F.R. § 260.1, et seq. In order to be a hazardous waste, a waste must first be a "solid waste" as defined in 40 C.F.R. § 261.2. Once it is determined that a solid waste is involved, a waste is considered hazardous if it has the characteristics of a hazardous waste; i.e., toxicity, ignitability, corrosivity, or reactivity; or if it exhibits the characteristics of a hazardous waste, has been found to be fatal, or it contains certain toxic constituents. 40 C.F.R. §§ 261.10; 261.11; 261.20-261.24. There are three categories of "listed wastes", referred to as follows: (1) "P" and "U" wastes, which identify by name certain commercially pure or technical grades of commercial chemical products or formulations in which the listed chemical is the sole active ingredient, see Doc. 122A, at 13; 40 C.F.R. § 261.33; (2) "K" wastes, which identify wastes produced from specific sources, such as wastewater treatment sludge from the production of chrome yellow and organe pigments (KOO2), see 40 C.F.R. § 261.32; and (3) "F" wastes, which identify wastes from non-specific sources, such as spent solvents, see 40 C.F.R. § 261.31. It is alleged in this case that the waste material collected at Recticel Plant numbers 1 and 3 constitutes an F002 listed waste.

III. FINDINGS AND CONCLUSIONS

RFC contends, inter alia, that, assuming for purposes of this motion that the flush stream described in Part I of this Report and Recommendation contained an F002 listed solvent, this stream was mixed with other non-hazardous process streams; that such mixtures are not covered by the listings; that the only possible basis under which the collected materials could even be classified as hazardous waste is under the now invalidated Mixture Rule; that this mixture constitutes a post-use mixture of an F002 listed solvent with non-hazardous wastes; that for over 12 years the Environmental Protection Agency ("EPA") expressly and consistently stated that the FOO2 listing does not apply to post-use mixtures of FOO2 listed solvents and non-hazardous wastes; that, rather, the EPA confirmed that any post-use blends involving listed solvents would be regulated by the Mixture Rule; that the Mixture Rule was invalidated by the United States Court of Appeals for the D.C. Circuit in Shell Oil v. EPA, 950 F.2d 741 (D.C.Cir.1991); that the defendants had no notice or warning that the mixture of the waste streams at issue would constitute an "F" listing; that RFC, therefore, cannot be prosecuted under the listings; and that the Indictment must be dismissed Doc. 122A.

The government responded to the defendant's motion, contending that the proper characterization of the materials at issue is not dependent upon either Shell Oil, supra, or the Mixture Rule; that there are four bases for characterizing the material at issue as hazardous, notwithstanding the decision in Shell Oil; that (1) the definition of "spent solvent" under the federal and state regulations necessarily contemplates the mixture of the solvent...