United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 29, 1999 Decided December 17, 1999
No. 98-1400
Molycorp, Inc.,
Petitioner
v.
U.S. Environmental Protection Agency,
Respondent
Lead Industries Association, Inc., et al.,
Intervenors
On Petition for Review of an Order of the
U.S. Environmental Protection Agency
James L. Meeder argued the cause for petitioner. With him
on the briefs was Robert D. Wyatt.
Daniel R. Dertke, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief was
Lois J. Schiffer, Assistant Attorney General. Steven Silver-
man, Attorney, U.S. Environmental Protection Agency, en-
tered an appearance.
Before: Silberman, Rogers and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Silberman.
Silberman, Circuit Judge: Molycorp, Inc., petitions for
review of a Technical Background Document issued by the
Environmental Protection Agency under the Resource Con-
servation and Recovery Act. Because the document is not a
regulation that we may review, we dismiss the petition for
lack of jurisdiction.
I.
Molycorp, Inc., operates a mine in Mountain Pass, Califor-
nia, about 50 miles southwest of Las Vegas in the high desert
of eastern San Bernardino County. The mine is the only
major domestic source of rare earth metals: scandium, yttri-
um, and the lanthanides (elements with atomic numbers 57
through 71, running from lanthanum to lutetium on the
periodic table). These elements are used as catalysts and
also have applications in such fields as lighting, metallurgy,
ceramics, magnets, and electronics. The mining process in-
volves excavation from an open pit, followed by crushing,
grinding, and flotation to concentrate bastnasite, a fluorocar-
bonate ore of rare earth metals. The concentrated ore is
roasted and then leached with hydrochloric acid, producing
cerium solids (which can be sold after thickening, filtering,
and drying) and lanthanide chlorides (which are subjected to
solvent extraction to separate individual lanthanide elements),
as well as various waste products.
This case concerns the application of the Resource Conser-
vation and Recovery Act (RCRA), 42 U.S.C. s 6901 et seq., to
Molycorp's operations. RCRA establishes a comprehensive
scheme for the regulation of the handling and disposal of solid
wastes; under Subtitle C, it imposes especially stringent
restrictions on hazardous wastes. But Subtitle C does not
apply to all hazardous wastes. In 1980, Congress adopted the
Bevill Amendment, which prohibited the EPA from regulat-
ing "solid waste from the extraction, beneficiation, and pro-
cessing of ores and minerals," until it completed a study of
the health and environmental effects of those wastes. 42
U.S.C. s 6921(b)(3)(A)(ii). After much delay--and some liti-
gation, see generally Solite Corp. v. EPA, 952 F.2d 473 (D.C.
Cir. 1991)--the EPA issued a regulatory determination con-
cluding that wastes uniquely associated with mineral extrac-
tion and beneficiation (but not processing) were produced in
large volumes and tended to present a lower risk of human
exposure than industrial waste, so they would not be subject
to Subtitle C regulation. 51 Fed. Reg. 24,496 (1986). The
determination did not identify specific waste streams that
were exempt, nor did it discuss the difference between benefi-
ciation and processing. In 1989, the EPA addressed the
Bevill status of processing wastes and determined by rule
that a specific mineral processing waste would be exempt only
if it met "high volume" and "low hazard" criteria. 54 Fed.
Reg. 36,592 (1989). The rule also defined "beneficiation" in
terms of a list of activities including "crushing, grinding,
washing, dissolution, crystallization, filtration, sorting, sizing,
drying ... and heap, dump, vat, tank and in situ leaching."
40 C.F.R. s 261.4(b)(7)(i).
This distinction between beneficiation and processing is
significant, because all beneficiation wastes are excluded from
Subtitle C regulation, while processing wastes are excluded
only if they meet the high volume and low hazard criteria.
To explain the definition, the EPA noted that beneficiation
tends to produce "high volume solid waste streams that are
essentially earthen in character. Despite the fact that valu-
able constituents have been removed, the remaining material
is often physically and chemically similar to the material (ore
or mineral) that entered the operation." 54 Fed. Reg. 36,619
(1989). Processing, on the other hand, generates "waste
streams that generally bear little or no resemblance to the
materials that entered the operation.... These operations
most often destroy the physical structure of the material,
producing waste streams that are not earthen in character."
Id. Under the EPA's definition, beneficiation is completed at
a specific point in time; after that, all activities are process-
ing. This means that a step that would otherwise be consid-
ered beneficiation will be considered processing if it is per-
formed on material that has already undergone processing.
In 1998, the EPA issued a Technical Background Docu-
ment, Identification and Description of Mineral Processing
Sectors and Waste Streams. The 1038-page document ad-
dresses 49 different mineral commodities. It discusses each
commodity, explains the steps used in its production, and
describes the wastes generated by its extraction, beneficia-
tion, and processing.
At issue is the section of the Technical Background Docu-
ment discussing the rare earth industry. The draft version
had described Molycorp's operations as producing some
waste streams from beneficiation and others from process-
ing. Molycorp submitted comments on the draft, objecting
that the EPA's characterization of some of its operations as
processing was inconsistent with the beneficiation/processing
distinction set out in the 1989 rule. According to Molycorp,
all of the operations at Mountain Pass are extraction or be-
neficiation, not processing. But the final document repeated
the Agency's conclusion that for rare earths, "the beneficia-
tion/processing line occurs between ore preparation and acid
digestion when the ore is vigorously attacked with concen-
trated acids, resulting in the physical destruction of the ore
structure," and that "all solid wastes arising from [any] oper-
ation(s) after the initial mineral processing operation are
considered mineral processing wastes, rather than beneficia-
tion wastes." It went on to identify specific waste streams
resulting from rare earth processing operations. Molycorp
petitioned for review, arguing that the document had been
improperly issued without notice and comment, that its con-
clusions were inconsistent with the Bevill Amendment, and
that the 1989 rule was unlawfully vague insofar as it defined
beneficiation.
II.
We begin (and end) by considering whether we have juris-
diction to entertain Molycorp's challenge, and we conclude
that we do not for three related but conceptually distinct
reasons.
The judicial review provision of RCRA states that "a
petition for review of action of the Administrator in promul-
gating any regulation, or requirement under this chapter or
denying any petition for the promulgation, amendment or
repeal of any regulation under this chapter may be filed only
in the United States Court of Appeals for the District of
Columbia." 42 U.S.C. s 6976(a)(1). As Molycorp recognizes,
this statute is not merely a venue provision, requiring that
challenges to final regulations be brought before us rather
than in another court. It is also a limitation on our jurisdic-
tion: we may review only final regulations, requirements, and
denials of petitions to promulgate, amend or repeal a regula-
tion. See American Portland Cement Alliance v. EPA, 101
F.3d 772, 775 (D.C. Cir. 1996). Petitioner claims that the
document is a regulation. To determine whether a regulato-
ry action constitutes promulgation of a regulation, we look to
three factors: (1) the Agency's own characterization of the
action; (2) whether the action was published in the Federal
Register or the Code of Federal Regulations; and (3) wheth-
er the action has binding effects on private parties or on the
agency. See Florida Power & Light Co. v. EPA, 145 F.3d
1414, 1418 (D.C. Cir. 1998). The first two criteria serve to
illuminate the third, for the ultimate focus of the inquiry is
whether the agency action partakes of the fundamental char-
acteristic of a regulation, i.e., that it has the force of law.
The document (which was not published in the Federal
Register) states that it "is intended solely to provide informa-
tion to the public and the regulated community regarding the
wastes that are potentially subject to the requirements of this
title." This disclaimer, which appears twice in the text,
continues:
While the guidance contained in this document may
assist the industry, public and federal and state regu-
lators in applying statutory and regulatory requirements
of RCRA, the guidance is not a substitute for those legal
requirements; nor is it a regulation itself. Thus, it does
not impose legally-binding requirements on any party,
including EPA, States or the regulated community.
The EPA has slightly obscured the non-binding nature of the
document by stating, at the time the draft document was
introduced and again before us, that it would have an "adviso-
ry" role in enforcement proceedings. See 61 Fed. Reg. 2,338,
2,354 (1996). We take this to mean only, as counsel assured
us at oral argument, that the agency is advising the public as
to its present enforcement inclinations--not that the docu-
ment itself would be given any weight at all in enforcement
proceedings.
Drawing on our cases construing the exceptions to the
APA's notice and comment requirement, Molycorp contends
that the Technical Background Document nevertheless must
be deemed a regulation because it has effected a change in
EPA policy. Assuming arguendo there was such a change,
this argument is based on a misunderstanding of our cases.
We have said that an interpretative rule construing a legisla-
tive rule cannot be modified without the notice and comment
procedure that would be required to change the underlying
regulation--otherwise, an agency could easily evade notice
and comment requirements by amending a rule under the
guise of reinterpreting it. See Paralyzed Veterans of Am. v.
D.C. Arena L.P., 117 F.3d 579, 586 (D.C. Cir. 1997). But the
document is not an interpretative rule. As we explained in
Syncor Int'l Corp. v. Shalala,
[I]nterpretative rules and policy statements are quite
different agency instruments. An agency policy state-
ment does not seek to impose or elaborate or interpret a
legal norm. It merely represents an agency position
with respect to how it will treat--typically enforce--the
governing legal norm. By issuing a policy statement, an
agency simply lets the public know its current enforce-
ment or adjudicatory approach.... The primary dis-
tinction between a substantive rule--really any rule--
and a general statement of policy, then, turns on whether
an agency intends to bind itself to a particular legal
position.
127 F.3d 90, 94 (D.C. Cir. 1997). The document does not set
out an interpretation of RCRA or of the EPA's regulations; it
does not impose obligations on regulated interests or on the
EPA. It is as the government insists merely a non-binding
statement of the EPA's view of how it plans to regard
particular activities relating to the production of mineral
commodities. Therefore it is irrelevant whether the EPA has
taken the same position in the past.1
A careful examination of petitioner's argument and the
record, moreover, reveals another jurisdictional barrier. If
Molycorp were correct in contending that EPA unlawfully
changed its 1989 regulation, it first did so back in 1991. The
Agency at that time wrote a letter to the California Depart-
ment of Health Services saying that "the second 'leaching'
step in [Molycorp's] operation appears to more closely resem-
ble acid digestion (a mineral processing operation) than it
does a conventional leaching (beneficiation) process," and
identifying "lead filter cake," "iron filter cake," and "waste
zinc contaminated with mercury" as mineral processing
wastes generated at Mountain Pass. Then in 1992 the EPA
expressed substantially similar views directly to Molycorp's
parent company. Under Molycorp's theory, those letters
would have been "regulations" subject to judicial review. Yet
the statute requires that review be sought within ninety days
of the promulgation of the regulation. See 42 U.S.C.
s 6976(a). Molycorp's petition would therefore be untimely.
If these problems were not enough, Molycorp's petition
suffers from a third jurisdictional shortcoming: the issue it
presents is not ripe. The record is less than pellucid in
identifying the specific waste streams actually produced at
Mountain Pass, and oral argument revealed that the parties
disagree about what wastes are produced there. That uncer-
tainty leaves open the possibility that there ultimately will be
__________
1 To be sure, as we noted in Syncor, see 127 F.3d at 96, if an
agency took a position in an enforcement proceeding in district
court that was clearly inconsistent with a prior enforcement policy
statement we would not be surprised if a district court's reaction
was unfavorable.
no disagreement over the proper regulatory classification of
Molycorp's wastes. Thus, there does not currently exist a
concrete controversy that is ripe for judicial review. See
Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 736
(1998). Nor can it be suggested that denying review now
causes hardship to Molycorp, cf. Abbott Labs. v. Gardner, 387
U.S. 136, 152-53 (1967), because any enforcement proceeding
against it would be based not on the document (which has no
legal effect) but on the underlying 1989 regulation. Molycorp
is no worse off than it would be had the document not been
issued at all.
* * * *
It is difficult for us to understand why this case was
brought before us at this time. The petition for review is
dismissed.
So ordered.