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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 19, 2004 Decided April 2, 2004
No. 02-1242
GENERAL MOTORS CORPORATION,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY AND
MICHAEL O. LEAVITT, ADMINISTRATOR,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENTS
On Petition for Review of an Order of the
Environmental Protection Agency
John N. Hanson argued the cause for petitioner. With
him on the briefs were Donald J. Patterson, Jr. and Justin A.
Savage.
Michael A. Cox, Attorney General, Attorney General’s
Office of the State of Michigan, Thomas L. Casey, Solicitor
General, Robert P. Reichel and Thaddeus E. Morgan, Assis-
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
tant Attorneys General, were on the brief for amicus curiae
State of Michigan in support of petitioner.
Robert J. Martineau, Jr. and Edward M. Callaway were
on the brief for amici curiae Alliance of Automobile Manufac-
turers, et al. in support of petitioner. Alison A. Keane and
Julie C. Becker entered appearances.
Jon M. Lipshultz, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief
were John C. Cruden, Deputy Assistant Attorney General,
and Mary E. Gleaves, Counsel, U.S. Environmental Protec-
tion Agency.
Before: SENTELLE, ROGERS and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: The General Motors Corporation
(‘‘GM’’) petitions for review of May 7, 2002 letters from an
enforcement official at the Environmental Protection Agency
(‘‘EPA’’) regarding nascent enforcement actions based on a
regulatory interpretation that automobile manufacturing
paint purge solvents are ‘‘solid waste’’ under the Resource
Conservation and Recovery Act of 1976 (‘‘RCRA’’), 42 U.S.C.
§§ 6901 et seq., upon exiting the spray painting unit. We
dismiss GM’s petition for lack of jurisdiction.
I.
A.
Subtitle C of RCRA, see 42 U.S.C. §§ 6921–6939e, ‘‘estab-
lishes a ‘cradle to grave’ federal regulatory system for the
treatment, storage, and disposal of hazardous wastes.’’
American Portland Cement Alliance v. EPA, 101 F.3d 772,
774 (D.C. Cir. 1996). The statute defines a ‘‘hazardous
waste’’ as ‘‘solid waste TTT [that] may pose a substantial
present or potential hazard to human health or the environ-
ment when improperly treated, stored, transported, or dis-
posed of, or otherwise managed.’’ 42 U.S.C. § 6903(5). ‘‘Sol-
id waste’’ is defined as ‘‘discarded material, including solid,
liquid, semisolid, or contained gaseous material resulting from
3
industrial, commercial, mining, and agricultural operations.’’
Id. § 6903(27). EPA regulations subject such waste to strin-
gent standards, including, as relevant here, 40 C.F.R. Part
265 Subpart J, id. §§ 265.190–265.202, on tank systems, and
Subparts BB and CC, id. §§ 265.1050–265.1064, 265.1080–
265.1090, on air emissions from equipment and tanks that
handle hazardous waste. Hazardous waste may also be sub-
ject to standards under state regulations, see 42 U.S.C.
§ 6926, and while an authorized state may enforce its hazard-
ous waste program in lieu of the federal program, id.
§ 6926(d), EPA has dual enforcement authority under RCRA,
id. § 6928, and may engage in pre-enforcement action or file
a complaint without its state counterpart, so long as it notifies
the authorized state. Id. § 6928(a)(2).
Under RCRA, EPA has broad investigatory and enforce-
ment authority. EPA may require hazardous waste facilities
to disclose particular information, id. § 6927, or to monitor
and test for hazardous waste, id. § 6934, and EPA may
inspect such facilities. Id. § 6927. Upon discovery of RCRA
violations, EPA engages in pre-enforcement action by issuing
an inspection report or a notice of violation to the facility.
See id. §§ 6927, 6928. The facility may be afforded an
opportunity to show cause why EPA should not proceed with
an enforcement action. Absent such opportunity, or if EPA
is unconvinced by the facility’s showing, EPA can commence
an enforcement action by filing an administrative complaint
alleging violations of Subtitle C requirements and proposing a
compliance order, suspension or revocation of the facility’s
permit, and a penalty. See id. § 6928(a); 40 C.F.R. Parts 22,
24. The owner or operator of the cited facility is entitled to a
hearing before an administrative law judge, and upon an
adverse decision, may appeal to the Environmental Appeals
Board (‘‘Board’’). See 42 U.S.C. § 6928(b); 40 C.F.R. § 22.4.
The Board’s decision, as the final EPA decision, is judicially
reviewable. See 42 U.S.C. § 6928(b); 40 C.F.R. §§ 22.27(d),
22.31. Alternatively, EPA can file a complaint directly in the
federal district court for injunctive or other appropriate relief,
see 42 U.S.C. § 6928(a),(h); 40 C.F.R. Parts 22, 24, including,
4
in certain instances, fines and imprisonment. See 42 U.S.C.
§ 6928(d).
B.
The underlying dispute between EPA and GM and the
amici concerns the point of generation of RCRA ‘‘solid
waste’’ in the automobile manufacturing industry’s paint
purge solvent processes. Shortly after the effective date of
the Subparts BB and CC requirements, by letter of July 29,
1997, Elizabeth Cotsworth, the Acting Director of the EPA
Office of Solid Waste,1 responded to a letter from an attorney
representing an unnamed client that uses solvents to clean
automated spray painting guns when changing paint color.2
The Cotsworth letter stated that, based on the system de-
scribed, ‘‘the used solvent is waste once its leaves the spray
painting unit, and [thus] TTT the equalization tank and associ-
ated piping are subject to hazardous waste regulatory re-
quirements.’’ After stating this ‘‘general interpretation of the
federal regulations,’’ the Cotsworth letter also advised that
the ‘‘authorized state agency is responsible for interpreting
its own regulations and making site specific regulatory deter-
minations.’’ In July 1998, EPA issued a copy of the Cots-
worth letter as a supplement to the RCRA Permit Policy
Compendium, which became available online to the regulated
public in September 1998 on the RCRA website (hereinafter
‘‘RCRA Policy Compendium’’).
Beginning in 1998, EPA issued notices of violations, based
on inspection reports, to several automobile manufacturing
facilities, including GM plants in Doraville, Georgia and Kan-
sas City, Kansas, as well as the Ford Motor Company’s
(‘‘Ford’’) Avon Lake, Ohio plant, for failure to assure that the
solvent piping systems used to convey purge solvents to
1 Letter from Elizabeth Cotsworth, Acting Director, Office of
Solid Waste, EPA, to Jill A. Weller, Thompson, Hine & Flory,
P.L.L. (July 29, 1997).
2 Letter from Jill A. Weller, Thompson, Hine & Flory, P.L.L.,
to Timothy Fields, Jr., Acting Assistant Administrator, Office of
Solid Waste, EPA (June 16, 1997).
5
solvent recovery tanks met the requirements under RCRA
Subtitle C. In September 1999, EPA filed an administrative
complaint against Ford for failure to comply with the require-
ments under Subparts J, BB, and CC of the regulations,
alleging that ‘‘[h]azardous waste is generated at the Facility
when paint lines and equipment are cleaned with solvents.’’
The following year EPA issued a notice of violation to the
Toyota Motor Manufacturing plant in Princeton, Indiana.
Similar notices of RCRA violations were issued by EPA in
July 2001 to the BMW Manufacturing Corporation (‘‘BMW’’)
plant in Spartanburg County, South Carolina, and in Febru-
ary and November 2001 to GM’s plants in Linden, New
Jersey and Bowling Green, Kentucky. EPA invited GM’s
Bowling Green plant ‘‘to show cause why EPA should not
take formal enforcement action against GM pursuant to’’
§ 3008(a) of RCRA, 42 U.S.C. § 6928(a).
By letter of March 10, 2000, the Alliance of Automobile
Manufacturers (‘‘AAM’’), which had been in discussions with
EPA officials about EPA’s enforcement initiative, expressed
‘‘concern[ ] about recent interpretations applying BB and/or
CC requirements to [the automobile industry’s] paint and
purge processes.’’3 AAM claimed that the interpretation in
the Cotsworth letter was based on an incomplete picture of
such processes. Urging a categorical position that the auto-
motive manufacturing ‘‘painting system is a process that
includes the use of purge solvent throughout the process,’’
AAM argued that the point of generation of ‘‘solid waste’’
does not occur until the solvent is discarded when it exits that
process upon reaching the solvent recovery tank. Further,
by letter of July 3, 2001, AAM claimed that ‘‘EPA’s recent
enforcement actions represent an entirely new interpretation
of the RCRA requirements,’’ and that ‘‘[s]uch changes in
regulatory interpretation and policy should be addressed on
their merits before enforcement actions are undertaken.’’4
3 Letter from Julie C. Becker, Assistant General Counsel, AAM
(hereinafter ‘‘AAM Becker’’), to David Eberly, Office of Solid Waste
Permits & State Programs Branch, EPA (Mar. 10, 2000).
4 Letter from AAM Becker, to Matthew Hale, Jr., Deputy
Director, Office of Solid Waste, EPA (July 3, 2001).
6
AAM therefore requested that ‘‘EPA place a ‘hold’ on RCRA
enforcement proceedings relating to automotive solvent re-
covery systems.’’ Letters from the governors of several
states and their environmental officials also expressed con-
cern about the Cotsworth interpretation and its application at
specific plants.
In response to AAM’s letters and inquires from two auto-
mobile manufacturers, Eric V. Schaeffer, the Director of
Regulatory Enforcement,5 wrote on August 31, 2001, that the
applicability of Subparts J and BB to piping systems convey-
ing solvents from spray painting units ‘‘is quite clear.’’ The
Schaeffer letter advised that EPA ‘‘has consistently articulat-
ed [this] viewpoint,’’ referencing the RCRA Policy Compendi-
um. Indicating that EPA was willing, if there was data to
support AAM’s categorical position, to ‘‘consider revising the
rule in light of [industry’s] viewpoint that the requirements
offer no environmental benefit,’’ the Schaeffer letter advised
that members of the industry still must ‘‘resolve liability for
past violations,’’ and urged resolution of compliance issues on
a multi-facility basis.
AAM responded by letter of September 7, 2001, that it
welcomed a meeting to focus on ‘‘needed environmental policy
changes,’’ and that it would provide information to ‘‘demon-
strate that EPA’s current regulatory interpretation — and
the corresponding enforcement initiative — do not stand to
produce environmental benefits.’’6 AAM cautioned, however,
that ‘‘[i]n this case, TTT a regulatory change may not be the
most cost-effective or innovative approach.’’ Seven months
later, by letter of April 23, 2002, AAM wrote to three EPA
Administrators, including Steven Shimberg, the Associate
Assistant Administrator of the EPA Office of Enforcement
5 Letter from Eric V. Schaeffer, Director of Office of Regulato-
ry Enforcement, EPA, to Gary Weinrich, Manager, BMW Manufac-
turing Corp., W. Charles Moeser, Sr. Manager, DaimlerChrysler
Corp., and AAM Becker (Aug. 31, 2001) (hereinafter ‘‘Schaeffer
letter’’).
6 Letter from AAM Becker, to Eric V. Schaeffer, Director of
Office of Regulatory Enforcement, EPA (Sept. 7, 2001).
7
and Compliance, in order to ‘‘bring[ ] to a conclusion our
continuing efforts to resolve the issue of purge solvent regula-
tion in the automobile industry,’’ and to present EPA with ‘‘a
comprehensive resolution’’ in response to EPA’s proposal of a
consent agreement without regulatory change that included
fines to recoup the economic benefit of noncompliance.7
On May 7, 2002, Steven Shimberg of the Office of Enforce-
ment and Compliance wrote to AAM and several of its
members, including GM (hereinafter ‘‘the Shimberg letters’’).
The Shimberg letter to GM stated in relevant part:
The EPA continues to stand by its’ 1997 determination
on the point of generation for hazardous waste at spray
paint operations and, as such, ancillary equipment trans-
porting the hazardous waste purge solvent from the
painting operations and the storage tanks to which the
mixture is conveyed are subject to RCRATTTT The
Agency has spent considerable time and resources listen-
ing to and reviewing information presented by members
of the automobile industry before reaching its position on
the issues. In the hope that there is still a possibility to
negotiate a settlement with individual members of the
industry, I would like to reaffirm the settlement offer
and acknowledge a change in one of the terms that is
designed to address the industry’s concern with the
compliance deadline for TTT Subpart BBTTTT For any
member of the industry that does not wish to discuss the
settlement offer, EPA will proceed with conventional
inspections and enforcement.8
7 Letter from Gregory Dana, Vice President of Environmental
Affairs, AAM and AAM Becker, to Marianne Lamont Horinko,
Assistant Administrator, Office of Solid Waste and Emergency
Response, EPA, Steven Shimberg, Associate Assistant Administra-
tor, Office of Enforcement and Compliance, EPA, and Thomas J.
Gibson, Associate Administrator, Office of Policy, Economics, and
Innovation, EPA (Apr. 23, 2002).
8 Letter from Steven Shimberg, to Patrick J. McCarroll, Legal
Staff, General Motors Corp. (May 7, 2002).
8
The Shimberg letter to AAM similarly stated that EPA
disagreed with AAM’s categorical critique of its enforcement
initiative, that ‘‘EPA continues to stand by its’ 1997 determi-
nation on the point of generation for hazardous waste at
spray paint operations,’’ and that the enforcement matters
should proceed and be resolved through settlements or adju-
dications involving individual manufacturers.9
The EPA Office of Enforcement and Compliance Assurance
sent an email on May 9, 2002 to Regions I–X that included a
copy of the Shimberg letters. Following federal and state
inspections, EPA issued, on May 31 and August 2, 2002,
inspection reports to GM and notified GM of RCRA violations
relating to the purge solvent piping systems at its plants in
Spring Hill, Tennessee and Doraville, Georgia. EPA directed
the Spring Hill facility to correct the violations and advised
the Georgia Department of Natural Resources that EPA had
classified the Doraville plant as a ‘‘significant non-Complier.’’
GM filed a petition in this court on August 2, 2002 for
review of EPA’s ‘‘final agency action TTT regarding the
RCRA classification of purge solvents in the automobile man-
ufacturing industry, as expressed in a May 7, 2002 letter from
EPA to the [AAM] TTT and separately in a similar letter sent
on May 7, 2002 to GM.’’ GM, joined by amici, contend in
their briefs that EPA’s attempt in the Shimberg letters to
regulate purge solvent piping systems unlawfully expands
EPA’s RCRA jurisdiction based on a novel characterization of
purge solvents that ignores their performance of solvent
functions after cleaning the spray painting unit. EPA filed a
motion on October 21, 2002, to dismiss GM’s petition for lack
of jurisdiction. While rejecting the attack on the applicability
of Subtitle C to purge solvent piping systems, EPA repeats in
its brief that, as a threshold matter, the court lacks jurisdic-
tion because the Shimberg letters are not regulations review-
able under RCRA § 7006(a), 42 U.S.C. § 6976(a), GM lacks
standing, and GM’s petition is untimely or unripe. As a court
9 Letter from Steven Shimberg, to Gregory Dana, Vice Presi-
dent of Environmental Affairs, AAM, and AAM Becker (May 7,
2002).
9
of limited jurisdiction, we begin, and end, with an examination
of our jurisdiction. See Utility Air Regulatory Group v.
EPA, 320 F.3d 272, 277 (D.C. Cir. 2003).
II.
Section 7006(a)(1) of RCRA, 42 U.S.C. § 6976(a)(1), limits
the jurisdiction of the court to review of ‘‘action of the
Administrator in promulgating any regulation, or require-
ment under this chapter or denying any petition for the
promulgation, amendment or repeal of any regulation under
this chapter.’’ Hence, the court has jurisdiction over ‘‘only
final regulations, requirements, and denials of petitions to
promulgate, amend or repeal a regulation.’’ Molycorp, Inc. v.
EPA, 197 F.3d 543, 545 (D.C. Cir. 1999); see also American
Portland Cement, 101 F.3d at 775. Three criteria determine
whether a regulatory action constitutes the promulgation of a
regulation: ‘‘(1) the Agency’s own characterization of the
action; (2) whether the action was published in the Federal
Register or Code of Federal Regulations; and (3) whether
the action has binding effects on private parties or on the
agency.’’ See Molycorp, 197 F.3d at 545. ‘‘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 characteristic of a regulation, i.e., that it has the
force of law.’’ Id.; see also Croplife America v. EPA, 329
F.3d 876, 883 (D.C. Cir. 2003); General Electric Co. v. EPA,
290 F.3d 377, 382–83 (D.C. Cir. 2002); American Portland
Cement, 101 F.3d at 776.
In several recent opinions, the court has had occasion to
address what type of EPA action is judicially reviewable,
eschewing the notion that labels are definitive. Thus, in
General Electric, 290 F.3d at 382–85, and Appalachian Power
Co. v. EPA, 208 F.3d 1015, 1020–23 (D.C. Cir. 2000), the court
held that EPA ‘‘Guidance’’ documents imposing new require-
ments were reviewable as final agency action. Such docu-
ments both marked the consummation of the agency’s deci-
sion making process and determined rights or obligations of
involved parties. See General Electric, 290 F.3d at 382;
10
Appalachian Power, 208 F.3d at 1022. The court in Appala-
chian Power explained:
If an agency acts as if a document issued at headquarters
is controlling in the field, if it treats the document in the
same manner as it treats a legislative rule, if it bases
enforcement actions on the policies or interpretations
formulated in the document, if it leads private parties or
State permitting authorities to believe that it will declare
permits invalid unless they comply with the terms of the
document, then the agency’s document is for all practical
purposes ‘‘binding.’’
208 F.3d at 1021; see also General Electric, 290 F.3d at 382–
83. Similarly, in CropLife, 329 F.3d at 881–83, the court held
that an EPA directive released in a press release was judicial-
ly reviewable: the directive was a final agency determination
because EPA’s changed position had immediate effect and
thus was binding on it and the petitioners, and the petitioners
‘‘[would] be afforded no additional opportunity to make the
arguments to the agency that they [ ] present[ed] in th[eir]
petition [for judicial review].’’ Id. at 882.
GM seeks to bring the Shimberg letters within the folds of
Appalachian Power and CropLife on either of two theories of
finality. First, GM contends, because the regulatory status of
paint purge solvents was an unresolved question that industry
had discussed with EPA for several years, the interpretation
in the Shimberg letters was a crystallization of EPA’s posi-
tion. Second, GM contends, even if EPA had previously
resolved the solvents’ regulatory status, EPA reopened the
issue and renewed its adherence to its earlier interpretation
in the Shimberg letters. Under either theory, GM contends
that the text of the Shimberg letters ‘‘is unequivocal that
EPA’s decision on the regulatory status of purge solvents is
final and that EPA intends it to be binding.’’ Petitioner’s Br.
at 30. The Shimberg letters are binding in the field GM
claims, as evidenced both by the May 9, 2002 email to the
Regions attaching the Shimberg letters, and by the Guidance
issued to the Regions at the end of 2002 after GM filed its
11
petition for review.10 Additionally, as evidenced by the subse-
quent enforcement actions against GM plants, GM maintains
‘‘EPA is explicitly basing enforcement action on the [regulato-
ry] interpretation formulated in the [Shimberg letters].’’ Id.
at 31 (internal quotation marks omitted). GM therefore
contends that EPA, in order to regulate purge solvent piping
systems, attempted to amend the RCRA regulations through
the Shimberg letters without providing notice and comment
as required by the Administrative Procedure Act, see 5 U.S.C.
§ 553, and thus its action is unlawful.
Contrary to GM’s theory, the Shimberg letters cannot
accurately be characterized as the culmination of EPA’s
position on the applicability of Subparts J, BB, and CC to
purge solvent piping systems. The Shimberg letters reflect
neither a new interpretation nor a new policy. See General
Electric, 290 F.3d at 382–83. EPA’s general regulatory
interpretation was stated as early as 1997 in the Cotsworth
letter. That interpretation was published to the regulated
community by September 1998 in the RCRA Policy Compen-
dium, see Appalachian Power, 208 F.3d at 1020, and was
applied to GM plants in 1998 and again in 2001. In response
to industry inquiries, EPA repeated its regulatory interpreta-
tion without change in the Schaeffer letter of August 31, 2001,
and again in the Shimberg letters of May 7, 2002. Nothing in
the record indicates that the paint purge solvent issue was
‘‘unresolved’’; rather, EPA’s position was settled long before
the Shimberg letters.
Under GM’s alternative theory, EPA reopened the paint
purge solvent issue by making itself available in response to
industry’s requests to discuss nascent enforcement matters in
light of industry data relevant to the point of generation of
RCRA ‘‘solid waste,’’ and thereby caused the 90–day period
for judicial review to run anew. 42 U.S.C. § 6976(a)(1).
10 See ‘‘Guidance on RCRA Subpart J Secondary Containment
Requirements at Automobile Spray Painting Operations’’ (Nov. 18,
2002), and ‘‘Supplemental Guidance on RCRA Subpart J Secondary
Containment Requirements at Automobile Spray Painting Opera-
tions’’ (Dec. 12, 2002) (hereafter ‘‘2002 Guidance’’).
12
Again, GM mischaracterizes EPA’s conduct. The rationale of
the reopening doctrine is not to stifle informal communica-
tions between agencies and the regulated industry. See Am.
Iron & Steel Inst. v. EPA, 886 F.2d 390, 398 (D.C. Cir. 1989).
Rather, the doctrine seeks to ensure that ‘‘when the agency in
question by some new promulgation creates the opportunity
for renewed comment and objection,’’ Ohio v. EPA, 838 F.2d
1325, 1328 (D.C. Cir. 1998), affected parties may seek judicial
review, even when the agency decides not to amend the long-
standing rule at issue. See Montana v. Clark, 749 F.2d 740,
744 (D.C. Cir. 1984), cert. denied, 474 U.S. 919 (1985); see
also Public Citizen v. NRC, 901 F.2d 147, 150 (D.C. Cir.
1990). There was no such ‘‘new promulgation’’ when EPA
responded to industry’s letters and requests for meetings
regarding EPA’s nascent enforcement actions. A ‘‘promul-
gation’’ involves more formal agency action, such as in Mon-
tana, 749 F.2d at 743–44, and Ohio, 838 F.2d at 1328–29,
where the agency published proposed rules for comment, and
in Public Citizen, 901 F.2d at 151, where the agency publish-
ed in the Federal Register notice of its intention to reevaluate
a prior decision to refrain from rulemaking. The Schaeffer
letter did not constitute a public announcement of EPA’s
intention to reconsider its interpretation; while inviting sub-
mission of data to support industry’s categorical position in
order for EPA to evaluate whether to reconsider its interpre-
tation and reopen the issue for public comment, the letter
stated that outstanding violations would have to be addressed
on the basis of EPA’s long-held interpretation. Nor did the
Shimberg letters constitute EPA’s resolution of a formal
reconsideration. See CropLife, 329 F.3d at 884; Edison Elec.
Inst. v. EPA, 996 F.2d 326, 331–32 (D.C. Cir. 1993); Ass’n of
Am. R.R. v. ICC, 846 F.2d 1465, 1473 (D.C. Cir. 1988). In
noting that EPA ‘‘has spent considerable time and resources
listening to and reviewing information presented by members
of the automobile industry before reaching its position on the
issues,’’ the Shimberg letters addressed whether industry had
provided the ‘‘consistent, reliable information’’ invited by the
Schaeffer letter that would justify scuttling nascent enforce-
ment actions. Presumably, had EPA determined that indus-
13
try data supported a categorical approach, EPA would have
issued a formal announcement of its intention to reconsider
its regulatory interpretation. That never happened. In the
absence of a ‘‘new promulgation,’’ there was no reopening as
would start anew the 90–day period for judicial review.
Viewed in their enforcement context, then, the Shimberg
letters are not reviewable as final agency action under RCRA
§ 7006(a). ‘‘No legal consequences flow from [the Shimberg
letters] TTT , for there has been no order compelling [GM] to
do anything.’’ Reliable Automatic Sprinkler Co. v. Consum-
er Prod. Safety Comm’n, 324 F.3d 726, 732 (D.C. Cir. 2003).
The Shimberg letters neither mark the consummation of
EPA’s decisionmaking process nor impose new substantive
rights or obligations on field personnel, the States, or third
parties. See Appalachian Power, 208 F.3d at 1022. Rather,
the letters were part of the ongoing dialogue initiated by
industry about EPA’s nascent enforcement actions at certain
automobile manufacturing plants that were based on the
regulatory interpretation in the RCRA Policy Compendium.
Cf. Molycorp, 197 F.3d at 546; see also FTC v. Standard Oil
Co., 449 U.S. 232, 241–43 (1980); Reliable Sprinkler, 324 F.3d
at 731–32; AT&T v. EEOC, 270 F.3d 973, 975–76 (D.C. Cir.
2001); Florida Power & Light Co. v. EPA, 145 F.3d 1414,
1419–20 (D.C. Cir. 1998). EPA was continuing in the Shim-
berg letters to make settlement offers to individual members
of the industry and, absent that, to litigate its interpretation
in enforcement actions. See Standard Oil, 449 U.S. at 241.
The Shimberg letters simply gave notice that, based on
industry’s data, EPA was not willing to promulgate a propos-
al for revising its regulatory interpretation or to scuttle
pending enforcement actions.
Because nothing in the record indicates that the Shimberg
letters imposed new requirements on regulated parties or
exclusively guided EPA’s subsequent enforcement activities,
GM misreads the Shimberg letters in maintaining that they
set forth an unequivocal final and binding new interpretation
or renewed interpretation. All of the documents cited by GM
and amici to demonstrate the impact of the Shimberg letters
show only that: (1) EPA enforcement personnel have found,
14
since the late 1990s, both before and after the Shimberg
letters, that based on the regulatory interpretation in the
RCRA Permit Policy Compendium, the statutory and regula-
tory requirements, and site-specific inspections, purge solvent
piping systems are subject to RCRA Subtitle C at some
automobile manufacturing facilities; and (2) some states ap-
pear to agree generally with GM and amici that automotive
purge solvent piping systems categorically are not subject to
RCRA Subtitle C regulation. By attaching the Shimberg
letters to an email to the field on May 9, 2002, EPA did not
impose new obligations in the field; rather, it did no more
than state the obligations set forth in the RCRA Policy
Compendium. Cf. Appalachian Power, 208 F.3d at 1022.
Similarly, the 2002 Guidance relied on by GM neither imposed
new requirements on the field nor mentioned the Shimberg
letters; rather, it was based on § 265.193 of Subpart J and
the regulatory interpretation set out in the RCRA Policy
Compendium. Cf. id. at 1020–23; General Electric, 290 F.3d
at 381–85. There is no basis, therefore, to conclude that EPA
was attempting through the Shimberg letters to amend
RCRA regulations, much less that the letters constitute final
agency action under RCRA § 7006(a).
Moreover, to the extent that GM’s petition challenges the
regulatory interpretation in the Shimberg letters the chal-
lenge is untimely. That interpretation, which EPA relied on
in issuing notices of violations to GM and other automobile
manufacturers, was set forth in the RCRA Policy Compendi-
um. Although the interpretation was not published in the
Federal Register, see Florida Power, 145 F.3d at 1418;
American Portland Cement, 101 F.3d at 776–77, ‘‘[w]ith the
advent of the Internet, the agency does not need these official
publications to ensure widespread circulation; it can inform
those affected simply by posting its new guidance or memo-
randa or policy statement on its website.’’ Appalachian
Power, 208 F.3d at 1020. GM’s petition was filed long after
the 90–day period for judicial review expired following the
posting of EPA’s interpretation on the RCRA website. See
42 U.S.C. § 6976(a)(1). AAM’s letters make clear that indus-
try was aware of EPA’s regulatory interpretation, and instead
15
of mounting a judicial challenge to that interpretation as final
agency action, chose to meet with EPA officials in order to
present data that industry thought would demonstrate that
EPA’s interpretation was based on an incomplete understand-
ing of the role of solvents after they leave the spray painting
guns and, therefore, was contrary to RCRA.
Furthermore, to the extent GM’s petition challenges the
application of EPA’s regulatory interpretation to GM plants,
the challenge is unripe. Under the two part test in Abbott
Labs. v. Gardner, 387 U.S. 136, 148–53 (1967), the balance
weighs in favor of postponement of judicial review. See
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891 (1990); State
Farm Mut. Auto. Ins. Co. v. Dole, 802 F.2d 474, 479–80 (D.C.
Cir. 1986), cert. denied 480 U.S. 951 (1987); Eagle-Picher
Indus., Inc. v EPA, 759 F.2d 905, 915 (D.C. Cir. 1985); cf.
General Electric, 290 F.3d at 380–81; Molycorp, 197 F.3d at
547. First, GM’s challenge is not ‘‘fit’’ for judicial review.
Although GM relies on the interpretation of RCRA ‘‘solid
waste’’ in Association of Battery Recyclers v. EPA, 208 F.3d
1047, 1050–56 (D.C. Cir. 2000), GM’s challenge to EPA’s
interpretation does not present a pure question of law. See
Abbott Labs., 387 U.S. at 149; Florida Power, 145 F.3d at
1421; City of Houston v. HUD, 24 F.3d 1421, 1431 (D.C. Cir.
1994). Whether paint purge solvent piping systems are
subject to RCRA is partly a factual question dependent on
the findings of inspections conducted at individual plants.
The Shimberg letters contain no factual information about
any particular automobile manufacturing plant. The 2002
Guidance cited by GM likewise emphasizes the need for site-
specific determinations. That need was illustrated by EPA
counsel during oral argument who explained that purge sol-
vent piping systems at specific plants may not be subject to
RCRA regulation if, for example, the purge solvents are
recirculated and reused to clean the spray painting unit, or
reused (without being reprocessed) directly in the manufac-
turing process, as distinct from the waste management pro-
cess. See 40 C.F.R. § 261.2; see also Hazardous Waste
Management System; Definition of Solid Waste, 50 Fed. Reg.
614, 624 (Jan. 4, 1985) (codified at 40 C.F.R. §§ 261.1(b),
16
261.2(e), and Part 266 Subpart F). EPA’s expression of
‘‘disappoint[ment]’’ with South Carolina’s decision to settle
with BMW’s Spartanburg County plant does not indicate, as
GM maintains, that EPA has categorically rejected the ‘‘con-
tinuous recirculation’’ exception; EPA’s concern arose be-
cause the wastes were not recirculated through the plant’s
paint guns but through the plant’s waste handling system,
and, in any event, the letter to which GM points states that
EPA ‘‘has not decided what, if any, action it may take in this
matter.’’11 Second, any hardship suffered by GM as a result
of postponement of judicial review is ameliorated by its
opportunity to challenge EPA’s regulatory interpretation ad-
ministratively, unlike the petitioners in Appalachian Power
and CropLife. See Florida Power, 145 F.3d at 1421. For
instance, on October 17, 2003, EPA filed an administrative
complaint against GM’s plants in Moraine, Ohio and Pontiac
and Lake Orion, Michigan, alleging violations of Subparts J,
BB, and CC in their paint purge solvent processes. The
arguments GM presents in its brief can be presented at an
agency hearing and before the Board, see 42 U.S.C.
§ 6928(a)-(b); 40 C.F.R. Parts 22, 24, prior to judicial review.
42 U.S.C. § 6928(b); 40 C.F.R. §§ 22.27(d), 22.31. This
circumstance militates against review now. See City of Hous-
ton, 24 F.3d at 1432 n.10. GM points to no ‘‘irremediable
adverse consequences [that will] flow from requiring a later
challenge.’’ Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S.
158, 164 (1967). Counsel for EPA stated during oral argu-
ment that, upon such judicial review, EPA would not argue
that GM’s petition is untimely under RCRA § 7006(a)(1), 42
U.S.C. § 6976(a)(1), for failure to appeal EPA’s purge solvent
interpretation at an earlier date.
Under the circumstances, ‘‘[i]t is difficult to understand
why this case was brought to the court at this time.’’ Moly-
crop, 197 F.3d at 547. The proper functioning of EPA
11 Letter from Phyllis P. Harris, Principal Deputy Assistant
Administrator, Office of Enforcement and Compliance Assurance,
EPA, to R. Lewis Shaw, Deputy Commissioner, Environmental
Quality Control, South Carolina Department of Health & Environ-
mental Control (Nov. 5, 2002).
17
includes candid discussions with RCRA regulated industries
regarding investigations, negotiations, and settlements. The
conduct of GM, AAM, and other members of the automobile
manufacturing industry illustrates their awareness of the
value of such discussions. Urging adoption of a categorical
position, industry presented data to EPA about the role of
paint purge solvents after they leave the spray painting guns.
AAM’s letter of September 7, 2001 candidly acknowledged
that industry was seeking a ‘‘cost-effective or innovative
approach’’ independent of regulatory change. Such discus-
sions also avoid premature litigation in the courts. See
Standard Oil, 449 U.S. at 242–43; Reliable Sprinkler, 324
F.3d at 732. Being too late to challenge EPA’s interpretation
in the RCRA Policy Compendium, and too early to challenge
it through final EPA adjudicatory action of RCRA violations
at specific GM plants, GM seizes on the Shimberg letters to
overcome those jurisdictional hurdles. But the Shimberg
letters were merely preliminary enforcement statements
made as part of an informal agency-industry dialogue and, of
themselves, finally determine no rights or obligations of in-
volved parties. Accordingly, we dismiss the petition for lack
of jurisdiction and do not reach the merits of GM’s challenge
to EPA’s regulatory interpretation.