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Shell Oil Co. v. Environmental Protection Agency | 950 F.2d 741 (1991)

The Resource Conservation and Recovery Act, or RCRA, is the federal law that gives the Environmental Protection Agency, or E P A, the authority to control hazardous wastes from source to final disposal. After RCRA was enacted in nineteen seventy-six, the E P A had to create criteria for identifying hazardous wastes that would apply to facilities that used or created these materials. This resulted in many unhappy industry parties, including the plaintiffs in Shell Oil versus Environmental Protection Agency.

The E P A’s proposed regulations, published in nineteen seventy-eight, included a definition of hazardous wastes and criteria for identifying them, and an informal procedure through which substances could be removed from the list.

Industry representatives responded to these proposed regulations during the federally mandated notice-and-comment period. Many disagreed with the listing of specific classes of wastes, arguing that this impermissibly expanded the number of substances that could be included. The E P A, under time pressure and despairing of ever creating a nationwide system that didn’t simultaneously regulate too much and too little, issued its final rules in nineteen eighty.

The final rules defined hazardous waste more broadly than the proposed regulations. They kept the classes of wastes, which the E P A argued was necessary due to the complexity of determining what was hazardous. The rules also stipulated that substances could be delisted only through formal notice-and-comment rulemaking, which would make it harder to have a substance removed from the list of hazardous wastes.

The rules added two provisions that hadn’t appeared in the proposed regulations. The mixture rule stated that a waste was hazardous if it was a mixture of solid waste and a listed hazardous waste. The derived-from rule provided that any solid waste generated from the treatment, storage, or disposal of a hazardous waste was itself a hazardous waste.

More than fifty industry parties filed petitions challenging the final rules. By nineteen eighty-nine there were still several major complaints outstanding, all alleging that the parties had been deprived of adequate notice and opportunity for comment. The United States Court of Appeals for the District of Columbia Circuit agreed to review the rules.


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