Cement Kiln Recycling Coalition v. Environmental Protection Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 16, 2007 Decided July 13, 2007

No. 06-1005

CEMENT KILN RECYCLING COALITION,
PETITIONER

v.

ENVIRONMENTAL PROTECTION AGENCY AND
STEPHEN L. JOHNSON, ADMINISTRATOR OF THE UNITED
STATES ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENTS

On Petition for Review of an Order of the
Environmental Protection Agency

Richard G. Stoll, Jr. argued the cause for petitioner. With
him on the briefs was Katherine E. Lazarski.

David J. Kaplan, 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 Laurel
Celeste, Counsel, U.S. Environmental Protection Agency.
Cynthia J. Morris, Attorney, U.S. Department of Justice, entered
an appearance.

Before: HENDERSON, RANDOLPH, and GARLAND, Circuit
Judges.
 2

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: The Cement Kiln Recycling
Coalition petitions for review of an Environmental Protection
Agency regulation that governs the permitting process for
facilities that burn hazardous waste as fuel. The Coalition also
petitions for review of a guidance document, the Human Health
Risk Assessment Protocol, that pertains to the same permitting
process. For the reasons stated below, we deny the petition for
review insofar as it challenges the regulation, and we dismiss the
challenge to the guidance document as outside our jurisdiction.

I

Hazardous waste combustors (HWCs) are facilities -- such
as incinerators, boilers, and industrial furnaces (including
cement kilns) -- that burn hazardous waste as fuel for their
operations. The Cement Kiln Recycling Coalition, the petitioner
in this case, is a trade association that includes manufacturers of
Portland cement that utilize hazardous waste as an alternative
fuel in some of their kilns. The Environmental Protection
Agency (EPA) has authority to regulate this activity under both
the Resource Conservation and Recovery Act (RCRA), see 42
U.S.C. § 6924, and the Clean Air Act (CAA), see id. § 7412.

Subtitle C of RCRA, see 42 U.S.C. § 6921 et seq.,
“establishes 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) (quoting Chemical Waste Mgmt., Inc. v. Hunt,
504 U.S. 334, 337 n.1 (1992)). This system operates through a
combination of national standards established by EPA
regulations, and a permit program in which permitting
authorities -- either EPA or states that have hazardous waste
 3

programs authorized by the agency -- apply those national
standards to particular facilities. See 42 U.S.C. §§ 6924-26.

The national standards applicable to the petitioner are
authorized by RCRA § 3004, 42 U.S.C. § 6924, which governs
“owners and operators of facilities for the treatment, storage, or
disposal of hazardous waste,” known as TSDs. 42 U.S.C. §
6924(a). For RCRA purposes, the burning of hazardous waste
is considered “treatment,” and thus falls within the statute. Id.
§ 6903(34); see Horsehead Res. Dev. Co. v. Browner, 16 F.3d
1246, 1252 & n.2 (D.C. Cir. 1994). Section 3004(a), which
applies generally to all TSDs, directs EPA to “promulgate
regulations establishing such performance standards, applicable
to [TSDs], as may be necessary to protect human health and the
environment.” 42 U.S.C. § 6924(a). Section 3004(q)
specifically applies to facilities that burn hazardous waste as
fuel, including cement kilns and other types of HWCs. Id. §
6924(q)(1)(B). Like section 3004(a), this section directs EPA to
promulgate such standards “as may be necessary to protect
human health and the environment.” Id. § 6924(q)(1).

In addition to the national standards authorized by section
3004, section 3005 of RCRA, 42 U.S.C. § 6925, establishes a
case-by-case permitting process. Section 3005(a) directs EPA
to “promulgate regulations requiring each person owning or
operating an existing [TSD] or planning to construct a new
[TSD] to have a permit issued pursuant to this section.” Id. §
6925(a). Section 3005(b) mandates that “[e]ach application for
a permit under this section shall contain such information as
may be required under regulations promulgated by [EPA].” Id.
§ 6925(b). And section 3005(c)(3) -- which EPA refers to as the
“omnibus” provision -- provides that “[e]ach permit issued
under this section shall contain such terms and conditions as the
[permitting authority] determines necessary to protect human
health and the environment.” Id. § 6925(c)(3).
 4

Although RCRA gives EPA comprehensive authority to
regulate hazardous waste combustors, the fact that HWCs emit
air pollutants also gives the agency jurisdiction under the Clean
Air Act, 42 U.S.C. § 7401 et seq. Section 112 of the CAA, as
amended in 1990, directs EPA to issue national emission
standards for hazardous air pollutants. See id. § 7412. The
statute requires EPA to “promulgate technology-based emission
standards for categories of sources that emit [such pollutants].
These emission standards are to be based not on an assessment
of the risks posed by [hazardous air pollutants], but instead on
the maximum achievable control technology (MACT) for
sources in each category.” Sierra Club v. EPA, 353 F.3d 976,
980 (D.C. Cir. 2004) (citations omitted); see 42 U.S.C. §
7412(d).1 Thus, EPA’s jurisdiction under RCRA § 3004 and §
3005 overlaps with its jurisdiction under CAA § 112 when the
source of hazardous air pollutants is also a TSD.

Anticipating that EPA’s jurisdiction under RCRA would
overlap with its jurisdiction under other statutes, Congress
enacted RCRA § 1006(b), 42 U.S.C. § 6905(b). This provision
requires EPA to “integrate all provisions of [RCRA] for
purposes of administration and enforcement and shall avoid
duplication, to the maximum extent practicable, with the
appropriate provisions of[, inter alia,] the Clean Air Act.” Id. §
6905(b)(1).

In 1991, EPA promulgated RCRA regulations applicable to
boilers and industrial furnaces (including cement kilns) that treat
hazardous waste by burning it as fuel. See Burning of

1
Within eight years after EPA promulgates MACT standards, the
statute “returns to a risk-based analysis . . . , [and] requires EPA to
consider whether residual risks remain that warrant more stringent
standards than achieved through MACT.” Sierra Club, 353 F.3d at
980; see 42 U.S.C. § 7412(f).
 5

Hazardous Waste in Boilers and Industrial Furnaces, 56 Fed.
Reg. 7,134 (Feb. 21, 1991). The 1991 RCRA rule was
“principally designed to establish air emissions requirements”
pursuant to RCRA § 3004(q). Horsehead, 16 F.3d at 1251.

Beginning in 1994, EPA began requiring every HWC that
applied for a RCRA permit to undergo a site-specific risk
assessment (SSRA). See Strategy for Hazardous Waste
Minimization and Combustion (1994), available at
http://www.epa.gov/epaoswer/hazwaste/combust/general/strat
-2.txt. EPA intended the SSRA program to give permitting
authorities the ability to impose permit conditions beyond
national standards in order “to limit emissions on a case-by-case
basis as necessary to ensure protection of human health and the
environment.” Id. A human-health SSRA could include a
“direct exposure” assessment designed to predict the health
impact of breathing air in the vicinity of a facility; it could also
include an “indirect” exposure assessment designed to focus on
multi-pathway non-inhalation exposures, such as the
consumption of crops grown in soil upon which substances
emitted into the air are deposited. EPA did not enshrine the
SSRA program in specific regulations, maintaining that
authority was provided by RCRA’s “omnibus” provision, RCRA
§ 3005(c)(3). EPA did, however, issue guidance documents to
assist permitting authorities in conducting SSRAs.

In 1999, pursuant to the Clean Air Act, EPA promulgated
technology-based MACT standards to control hazardous
pollutants emitted by facilities that burn hazardous waste,
including incinerators and cement kilns. See Final Standards for
Hazardous Air Pollutants for Hazardous Waste Combustors, 64
Fed. Reg. 52,828 (Sept. 30, 1999). This court vacated those
standards in 2001, holding that EPA had not adequately
demonstrated that they satisfied the requirements of CAA §
 6

112(d). See Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855,
857 (D.C. Cir. 2001).

In 2005, following notice and comment, EPA promulgated
revised MACT standards for HWCs. See National Emission
Standards for Hazardous Air Pollutants: Final Standards for
Hazardous Air Pollutants for Hazardous Waste Combustors, 70
Fed. Reg. 59,402 (Oct. 12, 2005) (“Final Rule”). At the same
time, EPA announced that the 1991 RCRA standards would “no
longer apply once a facility demonstrates compliance with” the
relevant 2005 MACT standards. Id. at 59,523. EPA issued this
“deferral” announcement pursuant to RCRA’s integration
provision, 42 U.S.C. § 6905(b), and the agency’s finding that the
new Clean Air Act MACT standards were generally “protective
of human health and the environment,” as required by RCRA.
See Final Rule, 70 Fed. Reg. at 59,517, 59,536. Concluding,
however, that “there may be instances where [the agency]
cannot assure that emissions from each source will be protective
of human health and the environment,” id. at 59,504, EPA
issued regulations that authorize permitting authorities to
conduct SSRAs on a case-by-case basis, see 40 C.F.R. §§
270.10(l), 270.32(b)(3).2

Those regulations, and particularly 40 C.F.R. § 270.10(l),
which is set out in full in the appendix to this opinion, are the
focus of the petition that is now before us. Section 270.10(l)
expressly authorizes a permitting authority to conduct an SSRA
-- that is, to “require the additional information or assessment(s)

2
As noted above, EPA had historically relied solely on RCRA’s
“omnibus” provision, RCRA § 3005(c)(3), as authority for its SSRA
program. See Final Rule, 70 Fed. Reg. at 59,506. Although EPA
continued to maintain that the “omnibus” provision was sufficient, the
Final Rule codified the program in regulations issued pursuant to
RCRA § 3004(a), § 3004(q), and § 3005(b). See id.
 7

necessary to determine whether additional controls are necessary
to ensure protection of human health and the environment.” Id.
§ 270.10(l). “This includes information necessary to evaluate
the potential risk to human health and/or the environment
resulting from both direct and indirect exposure pathways.” Id.
A permitting authority may require an SSRA only if it
“concludes, based on one or more of the factors listed in
paragraph (l)(1) of [the regulation,] that compliance with the
[MACT standards] alone may not be protective of human health
or the environment.” Id. Finally, a companion regulation
provides that, if the permitting authority “determines that
conditions are necessary in addition to those required [by the
MACT standards] to ensure protection of human health and the
environment, [it] shall include those terms and conditions in a
RCRA permit for a hazardous waste combustion unit.” Id. §
270.32(b)(3).

Although the 2005 Final Rule expressly authorized the
SSRA program by regulation, EPA declined to promulgate
regulations defining how SSRAs must be conducted. EPA
explained that “risk assessment -- especially multi-pathway,
indirect exposure assessment -- is a highly technical and
evolving field,” and that “[a]ny regulatory approach [it] might
codify in this area is likely to become outdated, or at least
artificially constraining, shortly after promulgation in ways that
[it] cannot anticipate now.” Final Rule, 70 Fed. Reg. at 59,512.
Instead, EPA issued a revised guidance document, the Human
Health Risk Assessment Protocol for Hazardous Waste
Combustion Facilities (HHRAP), containing technical
recommendations “for conducting multi-pathway, site-specific
human health risk assessments on” HWCs. HHRAP at 1-1
(Joint Appendix (J.A.) 453); see Final Rule, 70 Fed. Reg. at
59,512-13.
 8

The Coalition now petitions for review pursuant to RCRA
§ 7006(a)(1), 42 U.S.C. § 6976(a)(1), which gives this court
exclusive jurisdiction over “petition[s] for review of action of
the [EPA] in promulgating any regulation, or requirement under
[RCRA].” Id. § 6976(a)(1). The Coalition raises several
substantive and procedural challenges to the validity of 40
C.F.R. § 270.10(l). It also challenges the HHRAP guidance
document as a de facto legislative rule that was not promulgated
through notice-and-comment rulemaking, in violation of the
Administrative Procedure Act (APA), 5 U.S.C. § 553. EPA
responds that the Coalition’s petition is not ripe for review and,
in the alternative, defends its actions on a number of other
grounds. We consider the ripeness question in Part II, the
Coalition’s challenge to the regulation in Part III, and its
challenge to the guidance document in Part IV.

II

The “basic rationale” of the ripeness doctrine “is to prevent
the courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over
administrative policies, and also to protect the agencies from
judicial interference until an administrative decision has been
formalized and its effects felt in a concrete way by the
challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136,
148-49 (1967); see Ohio Forestry Ass’n v. Sierra Club, 523 U.S.
726, 732-33 (1998). “Determining whether administrative
action is ripe for judicial review requires us to evaluate (1) the
fitness of the issues for judicial decision and (2) the hardship to
the parties of withholding court consideration.” National Park
Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003)
(citing Abbott Labs., 387 U.S. at 149).
 9

EPA contends that neither the Coalition’s challenge to §
270.10(l), nor its challenge to the HHRAP guidance document,
is ripe for review. We disagree on both counts.

A

The Coalition objects to § 270.10(l) on three grounds.
According to the petitioner, the regulation is: (1) contrary to
RCRA § 3005(b) -- which directs that RCRA permit
applications “shall contain such information as may be required
under regulations promulgated by” EPA, 42 U.S.C. § 6925(b) --
because it does not spell out the information that will be
required in a permit application; (2) contrary to RCRA, because
it fails to define with sufficient specificity when an SSRA will
be required, and under what circumstances a permit will be
granted or denied; and (3) in violation of the APA, because EPA
failed to provide notice and an opportunity to comment
regarding the rationale for subjecting only HWCs (and not other
TSDs) to the SSRA program, and arbitrarily failed to respond to
industry comments on the same topic.

“In determining the fitness of an issue for judicial review
we look to see whether the issue is purely legal, whether
consideration of the issue would benefit from a more concrete
setting, and whether the agency’s action is sufficiently final.”
Clean Air Implementation Project (CAIP) v. EPA, 150 F.3d
1200, 1204 (D.C. Cir. 1998) (internal quotation marks omitted).
We have further “observed that a purely legal claim in the
context of a facial challenge . . . is ‘presumptively reviewable.’”
National Ass’n of Home Builders v. U.S. Army Corps of Eng’rs,
417 F.3d 1272, 1282 (D.C. Cir. 2005) (quoting National Mining
Ass’n v. Fowler, 324 F.3d 752, 757 (D.C. Cir. 2003)).

All of the Coalition’s challenges are to the facial validity of
§ 270.10(l), and all are “purely legal.” It is well-established that
 10

“‘[c]laims that an agency’s action is arbitrary and capricious or
contrary to law present purely legal issues.’” National Ass’n of
Home Builders, 417 F.3d at 1282 (quoting Atlantic States Legal
Found., Inc. v. EPA, 325 F.3d 281, 284 (D.C. Cir. 2003)). So,
too, do claims that an agency violated the APA by failing to
provide notice and opportunity for comment. See Better Gov’t
Ass’n v. Dep’t of State, 780 F.2d 86, 92 (D.C. Cir. 1986). To be
sure, “we have cautioned that sometimes ‘even purely legal
issues may be unfit for review.’” National Ass’n of Home
Builders, 417 F.3d at 1282 (quoting Atlantic States Legal
Found., 325 F.3d at 284). But EPA has offered no argument to
overcome the presumption that these purely legal issues are fit
for judicial decision. Because the issues are “purely legal,”
because the Coalition’s facial challenge would not “benefit from
a more concrete setting,” and because EPA’s action is
unquestionably “final,” the Coalition’s challenge to § 270.10(l)
is fit for judicial review. CAIP, 150 F.3d at 1204.

EPA further contends that, even if the issues are fit for
review, the Coalition cannot show that it would suffer hardship
if we deferred judgment. But “[w]here the first prong of the . .
. ripeness test is met and Congress has emphatically declared a
preference for immediate review[,] . . . no purpose is served by
proceeding to the [hardship] prong.” General Elec. Co. v. EPA,
290 F.3d 377, 381 (D.C. Cir. 2002) (internal quotation marks
omitted). Here, Congress has declared a preference for
immediate review by providing that a challenge to a final RCRA
regulation must be brought within ninety days of promulgation.
See 42 U.S.C. § 6976(a)(1); see also Molycorp, Inc. v. EPA, 197
 11

F.3d 543, 547 (D.C. Cir. 1999).3 We therefore hold that the
Coalition’s challenge to § 270.10(l) is ripe for review.

B

The Coalition objects to the HHRAP guidance document
solely on the ground that it is effectively a binding legislative
rule, and that it therefore should have been -- but was not --
promulgated pursuant to the APA’s notice-and-comment
requirements. See 5 U.S.C. § 553(b), (c). As we discuss more
fully in Part IV below, the question of whether the guidance
document is a legislative rule that is subject to notice and
comment -- rather than a policy statement that is not -- turns on
“whether the agency action binds private parties or the agency
itself with the ‘force of law.’” General Elec., 290 F.3d at 382.
(As we also explain in Part IV, whether we have jurisdiction to
rule on the Coalition’s challenge turns on a similar inquiry.4)
An “agency pronouncement will be considered binding as a
practical matter,” we have explained, “if it either [1] appears on
its face to be binding, or [2] is applied by the agency in a way
that indicates it is binding.” Id. at 383 (citation omitted).

3
Cf. Ohio Forestry, 523 U.S. at 737 (finding that a challenge to
a Forest Service management plan was unripe, in part because
“Congress has not provided for preimplementation judicial review of
forest plans” under the National Forest Management Act, in contrast
to other statutes, like RCRA § 7006, under which “Congress has
specifically instructed the courts to review ‘preenforcement’”).
4
Although we must decide threshold questions before reaching
the merits, see Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94
(1998), we may consider whether a case is ripe before determining
whether there is subject-matter jurisdiction, see Toca Producers v.
FERC, 411 F.3d 262, 265 n.* (D.C. Cir. 2005).
 12

We have held that when a challenge to an agency document
as a “legislative rule is largely a legal, not a factual, question” --
that is, when it turns only on whether the document “on its face
. . . purports to bind both applicants and the Agency with the
force of law” -- the claim is fit for review. See id. at 380.
However, “[w]here we believed the agency’s practical
application of a statement would be important, we have found
the issue not” fit for judicial determination. Public Citizen, Inc.
v. Nuclear Regulatory Comm’n, 940 F.2d 679, 683 (D.C. Cir.
1991).5 Thus, whether the Coalition’s challenge to the HHRAP
guidance document is fit for review turns in significant part on
whether that challenge can be resolved on the face of the
document, or whether it depends as well on the way in which the
document will be applied.

EPA contends that the petition is unripe because the
Coalition “relies upon its own speculation that permitting
authorities will treat the Guidance as if it were legally binding
and that the Guidance will impose new and significant burdens.”
EPA Br. 26. The Coalition, however, disclaims any intent to
rely on how the guidance has been or will be applied to
particular facilities, declaring that its challenge is based solely
on “the words of the statute, the words of EPA’s regulations, the
guidance documents, and the case law.” Coalition Reply Br. 6.
Indeed, the petitioner insists that its challenge “does not involve

5
See General Motors Corp. v. EPA, 363 F.3d 442, 451 (D.C. Cir.
2004) (holding that, “to the extent [the] petition challenges the
application of EPA’s regulatory interpretation to [petitioner’s] plants,
the challenge is unripe”); Hudson v. FAA, 192 F.3d 1031, 1034-35
(D.C. Cir. 1999) (“[W]e have often held that an early procedural
challenge to a purported policy statement [on the ground that it is
actually a legislative rule] is not ripe because it is not yet demonstrable
that the agency intends to treat it as having the characteristics of a
rule.”).
 13

any prediction of how EPA will actually implement this
regulatory regime,” id. at 2, and “can be fully evaluated without
waiting for [a particular HWC] project to arise,” id. at 7.

Thus framed, the Coalition has limited its attack on the
HHRAP to purely legal issues. As we note in Part IV, this
creates a significant obstacle to the success of the Coalition’s
challenge. But it also renders it fit for review. See, e.g.,
General Elec., 290 F.3d at 380 (finding that a challenge to a
guidance document was fit for review because it “turn[ed] . . .
primarily upon the text of the Document”). And as we discussed
in Part II.A, that ends our ripeness analysis. We do not proceed
to the hardship prong when the issue is adjudged fit for judicial
determination and Congress has provided for immediate review.
If the Coalition is correct on the merits -- that is, if the HHRAP
is a final legislative rule -- then Congress has so provided here.
See 42 U.S.C. § 6976(a)(1). We therefore conclude that the
Coalition’s challenge to the guidance document -- like its
challenge to § 270.10(l) -- is ripe for review.

III

As noted in Part II, the Coalition objects to § 270.10(l) on
three grounds. RCRA requires us to review those objections
under the standard set forth in the APA. See 42 U.S.C. §
6976(a) (citing 5 U.S.C. §§ 701-706). As relevant here, we may
overturn the regulation only if we find that it is “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law,” 5 U.S.C. § 706(2)(A), or that it was
promulgated “without observance of procedure required by
law,” id. § 706(2)(D).
 14

A

The Coalition’s first objection is that § 270.10(l) is “not in
accordance with law” because it fails to spell out the information
that is required in a permit application. RCRA § 3005(b) directs
that “[e]ach application for a permit under [section 3005] shall
contain such information as may be required under regulations
promulgated by” EPA. 42 U.S.C. § 6925(b) (emphasis added).
In the Coalition’s view, § 270.10(l) does not satisfy this
statutory directive because the regulation does not “specify[]
[the] information to be submitted in a RCRA permit application
under [EPA’s] SSRA program.” Coalition Br. 21. That
information, the Coalition maintains, is specified only in the
HHRAP guidance document.

The Coalition’s contention relies on our decisions in MST
Express v. Department of Transportation, 108 F.3d 401 (D.C.
Cir. 1997), and Ethyl Corp. v. EPA, 306 F.3d 1144 (D.C. Cir.
2002). The challenge in MST Express was based on the Motor
Carrier Safety Act, which directed the Secretary of
Transportation to “‘prescribe regulations establishing a
procedure to decide on the safety fitness of owners and operators
of commercial motor vehicles,’” including “‘a means of
deciding whether the owners, operators, and persons meet the
safety fitness requirements under’” the statute. MST Express,
108 F.3d at 402 (emphasis added) (quoting 49 U.S.C. §
31144(a)(1) (1997)). We concluded that the Department had not
carried out its statutory obligation because its regulations wholly
failed to “set[] forth ‘a means of deciding whether the owners,
operators, and persons meet the safety fitness requirements.’” Id.
at 406.

In Ethyl Corp., the petitioner challenged a regulation
promulgated under CAA § 206, 42 U.S.C. § 7525, which
“charges [EPA] with testing new motor vehicles to ensure that
 15

each vehicle’s emissions will comply with federal emissions
standards throughout its ‘useful life.’” 306 F.3d at 1146
(quoting 42 U.S.C. § 7525(a)(1)). Subsection 206(d) states that
EPA “shall by regulation establish methods and procedures for
making tests under this section.” Id. (emphasis in original)
(quoting 42 U.S.C. § 7525(d)). The challenged regulation,
however, did not “set out ‘methods and procedures for making
tests.’ Rather, it establishe[d] a framework for automobile
manufacturers to develop their own tests.” Id. Relying on MST
Express, we held that EPA had violated its statutory mandate to
issue test procedures “by regulation.” See id. at 1149-50.

We acknowledged in Ethyl Corp. that, when Congress has
“not specified the level of specificity expected of the agency, .
. . the agency [is] entitled to broad deference in picking the
suitable level.” Id. at 1149 (citing American Trucking Ass’ns v.
Dep’t of Transp., 166 F.3d 374, 379-80 (D.C. Cir. 1999), and
New Mexico v. EPA, 114 F.3d 290, 294 (D.C. Cir. 1997)). Here,
RCRA § 3005(b) does not mandate any particular level of
specificity at which EPA must define the information required
in permit applications, and under Chevron U.S.A. Inc. v. NRDC,
467 U.S. 837 (1984), we must therefore defer to a reasonable
EPA interpretation as to the degree of detail required. See, e.g.,
American Trucking, 166 F.3d at 378 (“The Chevron test applies
to issues of how specifically an agency must frame its
regulations.”); see also Animal Legal Def. Fund, Inc. v.
Glickman, 204 F.3d 229, 235 (D.C. Cir. 2000); New Mexico, 114
F.3d at 293.

In Ethyl Corp., however, we noted that “Ethyl’s challenge
[was] not that the EPA was too general in establishing test
procedures by regulation, but that it didn’t establish them by
regulation at all.” 306 F.3d at 1149. There is a dispositive
difference, we said, between “promulgations of (1) vaguely
articulated test procedures (which would be reviewed
 16

deferentially under such cases as American Trucking) and (2)
procedures for later development of tests (invalid under MST
Express).” Id. at 1149-50. Finding that the challenged
regulation did “not claim to have itself articulated even a vague
durability test,” we held that it clearly fell “on the forbidden side
of the line.” Id. at 1150; cf. American Trucking, 166 F.3d at 379
(noting that “the regulations condemned in MST Express gave
no guidance at all”).

Recognizing the line that we drew in Ethyl Corp., the
Coalition insists that its argument “is not that § 270.10(l) is
‘impermissibly vague,’” but that “on its face, the regulation is
incomplete.” Coalition Reply Br. 13. In effect, the Coalition
maintains that its argument, like Ethyl’s, is “not that the EPA
was too general in establishing [information requirements] by
regulation, but that it didn’t establish them by regulation at all.”
Ethyl Corp., 306 F.3d at 1149. We disagree.

Section 270.10(l) authorizes permitting authorities, upon a
finding that the MACT standards “alone may not be protective
of human health or the environment,” to “require the additional
information or assessment(s)”

necessary to determine whether additional controls are
necessary to ensure protection of human health and the
environment. This includes information necessary to
evaluate the potential risk to human health and/or the
environment resulting from both direct and indirect
exposure pathways.

40 C.F.R. § 270.10(l). The regulation then directs the permitting
authority to “base the evaluation of whether compliance with the
[MACT standards] alone is protective of human health or the
environment on factors relevant to the potential risk from a
 17

hazardous waste combustion unit, including, as appropriate, any
of the following” nine factors:

(i) Particular site-specific considerations such as
proximity to receptors (such as schools, hospitals,
nursing homes, day care centers, parks, community
activity centers, or other potentially sensitive
receptors), unique dispersion patterns, etc.;

(ii) Identities and quantities of emissions of persistent,
bioaccumulative or toxic pollutants considering
enforceable controls in place to limit those pollutants;

(iii) Identities and quantities of nondioxin products of
incomplete combustion most likely to be emitted and
to pose significant risk based on known toxicities
(confirmation of which should be made through
emissions testing);

(iv) Identities and quantities of other off-site sources of
pollutants in proximity of the facility that significantly
influence interpretation of a facility-specific risk
assessment;

(v) Presence of significant ecological considerations,
such as the proximity of a particularly sensitive
ecological area;

(vi) Volume and types of wastes, for example wastes
containing highly toxic constituents;

(vii) Other on-site sources of hazardous air pollutants
that significantly influence interpretation of the risk
posed by the operation of the source in question;
 18

(viii) Adequacy of any previously conducted risk
assessment, given any subsequent changes in
conditions likely to affect risk; and

(ix) Such other factors as may be appropriate.

40 C.F.R. § 270.10(l)(1).

The Coalition’s contention -- that § 270.10(l) does not set
forth (at all) the additional information that is required of permit
applicants when EPA mandates an SSRA -- is primarily based
on its assumption that the only parts of § 270.10(l) relevant to
information requirements are the six lines of the first indented
quotation in the preceding paragraph. In the Coalition’s view,
the balance of the regulation, including the nine factors listed in
§ 270.10(l)(1), relates only to what a permitting authority should
consider when deciding whether to require an SSRA in the first
place.

1. Even on the Coalition’s reading, it does not appear that
the information required by those six lines falls on the not
“establish[ed] by regulation at all” side of the boundary
demarked by Ethyl Corp. -- rather than on the “vaguely
articulated” side, as to which we owe EPA great deference. In
contrast to the situation in Ethyl Corp., here the agency does
“claim to have itself articulated [at least] a vague” information
requirement. Ethyl Corp., 306 F.3d at 1150. Indeed, EPA
claims to have articulated a reasonably narrow requirement. In
that respect, EPA stresses the context in which the information
at issue here may be required.

First, as the Coalition concedes, other EPA regulations
specify in considerable detail information that is required in the
permit applications of all TSDs, including HWCs. See, e.g., 40
 19

C.F.R. § 270.14.6 The issue here involves only the “additional
information” that is required of an HWC if an SSRA is
mandated. 40 C.F.R. § 270.10(l). Such information may be
required only if a permitting authority finds that “compliance
with the [MACT standards] alone may not be protective of
human health or the environment.” 40 C.F.R. § 270.10(l).

Second, the Coalition also appears to concede that even the
six quoted lines would be satisfactory if the application at issue
were for a “waiver to a generally applicable requirement,”
Coalition Br. 28 (emphasis omitted), rather than for “a permit
under the established rules,” id. at 27. Yet, as EPA points out,
the SSRA program is part and parcel of what effectively is a
waiver program. As EPA explains in the Final Rule, it regards
the SSRA program as a necessary condition for its decision to
waive (in EPA’s parlance, to “defer”) the application of the
1991 RCRA standards and instead to rely on the MACT
standards alone. See, e.g., Final Rule, 70 Fed. Reg. at 59,512.
Although EPA believes that the MACT standards (without the
1991 RCRA standards) are sufficient to protect human health
and the environment in most situations, it cannot be certain that
is true at all sites. See id. at 59,504. It therefore promulgated §
270.10(l) to authorize SSRAs where permitting authorities found
that the MACT standards may not alone be sufficiently
protective.

Third, the general language of § 270.10(l)’s information
requirement is narrowed by the circumstances under which it is
triggered. Because that additional information is not required

6
This information includes, for example, a “general description
of the facility,” 40 C.F.R. § 270.14(b)(1), a “[c]hemical and physical
analysis of the hazardous waste . . . to be handled at the facility,” id.
§ 270.14(b)(2), and a “topographical map” of the surrounding area, id.
§ 270.14(b)(19).
 20

unless the permitting authority “concludes . . . that compliance
with the [MACT standards] alone may not be protective of
human health or the environment,” 40 C.F.R. § 270.10(l), the
information that can be required is limited to that “necessary to”
make a comparison to the (quite specific) MACT standards, id.

2. But even if the six quoted lines would not survive
analysis under Ethyl Corp. and MST Express if they stood alone,
EPA contends that they do not stand alone. In contrast to the
petitioner, EPA regards the nine factors listed in § 270.10(l)(1)
as relating not only to what a permitting authority should
consider in deciding whether to require an SSRA, but also as
identifying the “range of considerations for which information
necessary to evaluate risks could be requested.” EPA Br. 30;
see Oral Arg. Recording at 1:20:21 (stating that the nine factors
listed in subsection 270.10(l)(1) “cabin[] the areas . . . for which
site-specific risk assessment information can be requested”).
Since this is EPA’s interpretation of its own regulation, it “is
‘controlling’ unless ‘plainly erroneous or inconsistent with’ the
regulation[].” Long Island Care at Home, Ltd. v. Coke, 127 S.
Ct. 2339, 2349 (2007) (quoting Auer v. Robbins, 519 U.S. 452,
461 (1997)) (internal quotation marks omitted).7

Under this deferential standard of review, we have no
authority to disturb EPA’s reading of the regulation. Section
270.10(l)(1) states that a permitting authority “shall base the

7
This standard of review is appropriate even where, as here, the
agency’s interpretation of its regulation is set forth in its brief to this
court, because we “have ‘no reason . . . to suspect that [this]
interpretation’ is merely a ‘post hoc rationalizatio[n]’ of past agency
action, or that it ‘does not reflect the agency’s fair and considered
judgment on the matter in question.’” Long Island Care at Home,
Ltd., 127 S. Ct. at 2349 (quoting Auer, 519 U.S. at 462) (internal
quotation marks omitted).
 21

evaluation of whether compliance with the [MACT standards]
alone is protective of human health or the environment” on the
nine listed factors. 40 C.F.R. § 270.10(l)(1). The petitioner is
correct that this “evaluation” is central to the determination of
whether to require an SSRA -- which turns on the conclusion
“that compliance with the [MACT standards] alone may not be
protective.” Id. § 270.10(l). But it is also highly relevant to the
evaluation of what “additional information” is “necessary to
determine whether additional controls [beyond the MACT
standards] are necessary to ensure protection” -- the only
“additional information” that may be required in an SSRA. Id.
Thus, EPA’s interpretation is neither plainly erroneous nor
inconsistent with the regulation, and we are bound to accept it.

Once we determine that § 270.10(l)(1) relates to the
categories of information that can be required in a permit
application, the Coalition’s argument loses whatever force it
might otherwise have had. Following the framework set out in
Ethyl Corp., we must uphold the challenged regulation so long
as it establishes an identifiable standard governing the
information that permitting authorities may request. We can set
aside the regulation only if it creates no standard at all, instead
delegating the decision regarding what information is required
of permit applicants to permitting authorities. See 306 F.3d at
1149-50. We conclude that the regulation establishes an
identifiable standard.

The first eight factors listed in the regulation are more than
sufficient to guide the type of information that can be required
of permit applicants. The regulation allows permitting
authorities to require information in concrete categories,
including: “[p]articular site-specific considerations such as
proximity to receptors (such as schools, hospitals, [etc.]), unique
dispersion patterns, etc.,” id. § 270.10(l)(1)(i); “[i]dentities and
quantities of nondioxin products of incomplete combustion most
 22

likely to be emitted and to pose significant risk based on known
toxicities,” id. § 270.10(l)(1)(iii); and “[p]resence of significant
ecological considerations, such as the proximity of a particularly
sensitive ecological area,” id. § 270.10(l)(1)(v). Far from being
standardless, the listed categories are relatively specific and
serve to cabin a permitting authority’s discretion with respect to
the type of information it may seek. Indeed, EPA stated in the
Final Rule and again at oral argument that the most important
factor is the eighth: the “[a]dequacy of any previously
conducted risk assessment, given any subsequent changes in
conditions likely to affect risk.” Id. § 270.10(l)(1)(viii); see
Final Rule, 70 Fed. Reg. at 59,515-16; Oral Arg. Recording at
1:04:00. As EPA explained, because all cement kilns subject to
the SSRA program currently have permits, see Oral Arg.
Recording at 43:04, “[i]nstances where a facility may need to
repeat a risk assessment would be related to changes in
conditions that would likely lead to increased risk.” Final Rule,
70 Fed. Reg. at 59,516. Hence, most information requests will
be targeted at determining whether there has been a change in
circumstances since the previous permitting process.

To be sure, the regulation’s ninth provision -- which allows
permitting authorities to request information regarding “[s]uch
other factors as may be appropriate,” 40 C.F.R. §
270.10(l)(1)(ix) -- is general. But it does not render the
regulation standardless. The information requested under this
provision must still be “necessary to determine whether
additional controls are necessary to ensure protection of human
health and the environment,” id § 270.10(l), and “relevant to the
potential risk from a hazardous waste combustion unit,” id. §
270.10(l)(1). Moreover, under “the established interpretive
canon of ejusdem generis, ‘[w]here general words follow
specific words,’ the general words are ‘construed to embrace
only objects similar in nature to those objects enumerated by the
preceding specific words.’” Edison Elec. Inst. v. Occupational
 23

Safety & Health Admin., 411 F.3d 272, 281 (D.C. Cir. 2005)
(citation omitted). Thus, any information requested under the
regulation’s ninth factor must be “similar in nature” to that
identified in the first eight.8

In sum, in contrast to the regulations at issue in Ethyl Corp.
and MST Express, § 270.10(l) guides both regulated parties and
permitting authorities with respect to the types of information
that may be required in a permit application. As we
acknowledged in Ethyl Corp., “[t]here may, of course, be cases
in which it is hard to distinguish between” a regulation that
provides “vaguely articulated” guidance concerning a
requirement (which we would review deferentially) and one that
provides no guidance at all (and hence does not truly establish
the requirement by regulation). 306 F.3d at 1149. But this is
not one of those cases. Although the challenged regulation may
“not provide as much detail as the petitioner wishes,” Final
Rule, 70 Fed. Reg. at 59,513, section 3005(b) of RCRA does not
require more.

B

The Coalition’s second objection to § 270.10(l) is that it is
“impermissibly vague” with respect to the “trigger[]” for
requiring an SSRA. Coalition Br. 35. In the Coalition’s view,
the regulation’s trigger -- a conclusion by the permitting
authority “that compliance with the [MACT standards] alone
may not be protective of human health or the environment”-- is
insufficiently specific to satisfy RCRA. The petitioner appears
to level the same objection against 40 C.F.R. § 270.32(b)(3), the

8
EPA agrees with this construction. See Oral Arg. Recording at
1:02:53 (EPA counsel’s representation that the “catchall has to be
understood within the context of the limitations” enumerated in the
first eight factors).
 24

companion regulation that articulates the standard for deciding
whether a permitting authority must add conditions before
approving a permit for a facility that has undergone an SSRA.
That standard depends on a determination that “conditions are
necessary in addition to those required under [the MACT
standards] to ensure protection of human health and the
environment.” 40 C.F.R. § 270.32(b)(3) (emphasis added).

Unlike the argument that the Coalition directed at the
information requirement of § 270.10(l), here its attack is clearly
on the “too general” rather than the “no regulation at all” side of
the line drawn by Ethyl Corp. See supra Part III.A. In fact, the
petitioner had little choice in the matter since, by contrast to
RCRA § 3005(b) -- which provides that permit applications
must contain information required “under regulations” -- the
Coalition concedes that no statute requires that the trigger for
ordering an SSRA or approving a permit on the basis of an
SSRA must be codified in a regulation. See Oral Arg.
Recording at 18:20, 1:30:52. Section 3004(q) of RCRA, upon
which EPA rests its authority to promulgate the challenged
regulation, merely authorizes the agency to promulgate such
“standards applicable to [HWCs] . . . as may be necessary to
protect human health and the environment.” 42 U.S.C. §
6924(q)(1); see supra note 2. RCRA’s “omnibus” provision,
upon which EPA also relies for authority to require SSRAs,
provides that “[e]ach permit issued under this section shall
contain such terms and conditions as the [permitting authority]
determines necessary to protect human health and the
environment.” 42 U.S.C. § 6925(c)(3) (emphasis added). The
relevant Senate Report makes clear that: “This provision . . .
gives the Administrator . . . the authority to add permit terms
and conditions beyond those mandated in regulations . . . . The
provision is designed to deal with factors or situations different
from those addressed in the regulations.” S. REP. NO. 98-284,
at 31 (1983) (emphasis added).
 25

In short, the Coalition cannot argue that the triggers for
ordering SSRAs or approving permits transgress a statutory
command to set those triggers by regulation -- because there is
no such statutory command. Instead, the Coalition simply
argues that the triggers are impermissibly vague, an argument it
can win only if it can show that EPA’s failure to provide greater
specificity constitutes an unreasonable interpretation of RCRA.
See, e.g., Animal Legal Def. Fund, 204 F.3d at 235; American
Trucking, 166 F.3d at 378; New Mexico, 114 F.3d at 293.9 As
we discussed in Part III.A, this is always a difficult burden for
a petitioner to overcome. See Ethyl Corp., 306 F.3d at 1149
(citing American Trucking, 166 F.3d at 379-80, and New
Mexico, 114 F.3d at 294).10 Here it is insurmountable, because
§ 270.10(l) does not merely define the triggers in terms of what
is “protective of human health or the environment.” Rather, as
discussed in Part III.A, the regulation provides nine relatively

9
Although the Coalition’s briefs appear to pose its specificity
challenge as an attack on EPA’s interpretation of RCRA, it might also
have intended to argue that the asserted vagueness of § 270.10(l)
renders the regulation arbitrary and capricious. But such an argument
would also fail because, as was true in Animal Legal Defense Fund,
“[t]he explanation that renders the [agency’s] interpretation of the
statute reasonable” -- which we discuss below -- “also serves to
establish that the final rule was not arbitrary and capricious.” 204
F.3d at 235.
10
See also Animal Legal Def. Fund, 204 F.3d at 235 (“[W]e
accord agencies broad deference in choosing the level of generality at
which to articulate rules.”); Metropolitan Washington Airports Auth.
Prof’l Fire Fighters Ass’n v. United States, 959 F.2d 297, 300 (D.C.
Cir. 1992) (“[J]udicial deference is at its highest in reviewing an
agency’s choice among competing policy considerations, including the
choice here of the level of generality at which it will promulgate
norms implementing a legislative mandate.” (citation omitted)).
 26

specific factors to guide that determination. RCRA does not
require more.

In its opening brief, the Coalition further argued that EPA
should have defined what is protective of human health or the
environment numerically, in terms of the threshold risk level
that will trigger an SSRA or dictate unconditional approval of a
permit.11 At oral argument, the Coalition receded from this
claim, see Oral Arg. Recording at 1:34:32, 1:35:34, and sensibly
so. There is nothing in the statutory language that compels such
a numerical definition. Cf. New Mexico, 114 F.3d at 293
(holding that a statutory mandate to set “criteria” for waste plan
certification “says nothing to suggest that the criteria must be
detailed or quantitative”). To the contrary, section 3004(q)’s
requirement that EPA promulgate “standards . . . as may be
necessary to protect human health and the environment,” 42
U.S.C. § 6924(q)(1), is reasonably read as authorizing standards
that allow a case-by-case analysis rather than a uniform risk
threshold. Moreover, section 3005(c)(3) -- which states that
“[e]ach permit . . . shall contain such terms and conditions as the
[permitting authority] determines necessary to protect human
health and the environment,” id. § 6925(c)(3) -- was plainly
intended to allow such an analysis. See S. REP. NO. 98-284, at
31 (1983) (“This amendment gives the Agency the authority to
address special cases and unique circumstances.”). And we
certainly cannot interpret section 3004 to prohibit what section
3005 allows. See National Ass’n of Home Builders v. Defenders
of Wildlife, __ S. Ct. __, slip op. at 18 (June 25, 2007) (“In
making the threshold determination under Chevron, ‘a reviewing

11
For example, with respect to cancer risks, a risk threshold might
be presented as “1 x 10-5,” signifying that an individual “is estimated
to have up to a one in 100,000 chance of developing cancer during
his/her lifetime from the exposure being evaluated.” Coalition Br. 5;
see id. at 35.
 27

court should not confine itself to examining a particular
statutory provision in isolation.’” (quoting FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 132 (2000)).

Moreover, EPA has reasonably explained why it chose the
case-by-case approach. A national risk threshold, the agency
explained, could not address unique site-specific considerations,
such as unusual terrain or dispersion features, proximity to
particularly sensitive populations, or unusually high contaminant
background concentrations. See Final Rule, 70 Fed. Reg. at
59,505, 59,510-11. It “is important, and indeed essential,” the
agency said, “that risk managers be afforded sufficient
flexibility to apply different target [risk] levels as dictated by the
circumstances surrounding the combustor” at different sites.
National Emission Standards for Hazardous Air Pollutants:
Proposed Standards for Hazardous Air Pollutants for Hazardous
Waste Combustors, 69 Fed. Reg. 21,198, 21,331 (Apr. 20, 2004)
(“Proposed Rule”). For example, EPA explained that “a risk
manager may wish to apply a more stringent carcinogenic target
level for a combustor that is located in a densely populated area
with a high concentration of industrial emission sources” than
for one in an area without sensitive receptors. Id. We find
nothing unreasonable about EPA’s refusal to interpret RCRA to
require a national standard for ordering an SSRA or granting a
permit.12

12
See National Wildlife Fed’n v. EPA, 286 F.3d 554, 566-67
(D.C. Cir. 2002) (concluding that EPA reasonably interpreted Clean
Water Act § 301(b)(2) as permitting it to regulate color pollutants on
a case-by-case basis, because their impact “is driven by highly site-
specific conditions” (citation omitted)); Chemical Waste Mgmt., Inc.
v. EPA, 976 F.2d 2, 31 (D.C. Cir. 1992) (holding that the
corroborative testing requirement of a RCRA regulation was not
“impermissibly vague” and that details “can be resolved on a site-
specific, case-by-case basis”).
 28

For general support of its contention that EPA’s SSRA
regulation is impermissibly vague, the Coalition relies on South
Terminal Corp. v. EPA, 504 F.2d 646 (1st Cir. 1974). In South
Terminal, the First Circuit vacated an EPA regulation that
conditioned construction of parking facilities in the Boston area
on the receipt of an EPA “permit stating that construction or
modification of such facility will not interfere with the
attainment or maintenance of applicable Federal air quality
standards.” Id. at 657 n.8 (quoting 40 C.F.R. § 52.1135(d)
(1974)). The court struck the regulation down on the ground
that it “does not indicate how ‘interference’ is to be judged . . .
. The prospective applicant for a permit is utterly without
guidance as to what he must prove, and how.” Id. at 670.

Unlike the regulation invalidated in South Terminal, §
270.10(l) does “indicate” how the permitting authority is to
judge what is “protective of human health or the environment”:
by reference to the protection provided by the MACT standards
alone. See 40 C.F.R. § 270.10(l). And it provides still further
guidance by reference to a list of relatively detailed factors. See
supra Part III.A (citing 40 C.F.R. § 270.10(l)(1)(i)-(ix)). That
is more than sufficient to withstand a facial challenge -- which
the Coalition insists is the only kind of attack it is mounting in
this court. As we said in Atlas Copco, Inc. v. EPA:

Admittedly, without express standards establishing
precise guidelines, application of the . . . regulation is
subject to abuse, but this is true of any testing
capability. The solution lies not in a challenge to the
facial validity of the program itself, for that is not
where the potential for abuse exists. Rather, objection
is more appropriately aimed at a particular application
of the program, where it can be reviewed against the
backdrop of its own particular circumstances.
 29

642 F.2d 458, 466 (D.C. Cir. 1979); see also 42 U.S.C. §
6976(b) (providing for judicial review, in the appropriate
regional circuit, of EPA “action . . . in issuing, denying,
modifying, or revoking any permit under” RCRA § 3005).

C

The Coalition’s final challenge to the regulation is that, in
promulgating § 270.10(l), EPA failed to provide adequate notice
of part of its rationale for the SSRA program, and likewise failed
to respond to the Coalition’s significant comments thereon. The
APA requires that an agency publish notice of proposed
rulemaking, including “either the terms or substance of the
proposed rule or a description of the subjects and issues
involved,” 5 U.S.C. § 553(b)(3), and that it “give interested
persons an opportunity to participate in the rule making through
submission of written data, views, or arguments,” id. § 553(c).
A “notice of proposed rulemaking must provide sufficient
factual detail and rationale for the rule to permit interested
parties to comment meaningfully.” Honeywell Int’l, Inc. v. EPA,
372 F.3d 441, 445 (D.C. Cir. 2004) (internal quotation marks
omitted). And an agency must “demonstrate the rationality of
its decision-making process by responding to those comments
that are relevant and significant.” Grand Canyon Air Tour Coal.
v. FAA, 154 F.3d 455, 468 (D.C. Cir. 1998).13 Hence, the
Coalition suggests both that § 207.10(l) was promulgated
“without observance of procedure required by law,” 5 U.S.C. §
706(2)(D), and (implicitly) that it is “arbitrary [or] capricious,”
id. § 706(2)(A).

13
See Public Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir.
1993) (“The requirement that agency action not be arbitrary or
capricious includes a requirement that the agency . . . respond to
‘relevant’ and ‘significant’ public comments.” (citation omitted)).
 30

The Coalition’s first contention is that EPA “failed to
provide adequate public notice regarding its reasons for
requiring SSRAs only from HWCs,” and not from other types of
hazardous waste management facilities (TSDs), such as
landfills. Coalition Br. 43. But EPA did provide “sufficient
factual detail and rationale for the rule to permit interested
parties to comment meaningfully.” Honeywell, 372 F.3d at 445.
The notice set forth the text of the proposed regulation (which
was expressly limited to HWCs) as well as its rationale. See
Proposed Rule, 69 Fed. Reg. at 21,325-31, 21,358-59, 21,383.
And while the discussion of the regulatory rationale did not
explicitly note why non-HWCs were not covered, at least part of
the reason was evident from the purpose of the rulemaking: it
was intended to integrate the 1991 RCRA standards and the new
Clean Air Act MACT standards for facilities subject to both.
See id. at 21,358-59. Hazardous waste facilities that are not
HWCs are not subject to both, because they do not produce
emissions and so are not subject to the CAA. In any event, it is
clear that the Coalition was in fact able to comment
meaningfully -- and critically -- regarding the regulation’s
differential treatment of HWCs and non-HWCs. See [Coalition]
Comments on the HWC MACT Replacement Standards
Proposed Rule, at 116-17 (July 6, 2004) (J.A. 167-68). And that
belies the petitioner’s claim that the notice was insufficient.

The Coalition’s second contention is that EPA failed to
respond to its critical comments. This contention is also without
merit. In the Final Rule, EPA specifically noted the Coalition’s
comments. See Final Rule, 70 Fed. Reg. at 59,512. It responded
by explaining that it was requiring SSRAs for HWCs in order to
ensure that the Clean Air Act’s MACT standards are sufficiently
protective to permit deferral of the 1991 RCRA standards; but
because the MACT standards are not applicable to non-
emission-producing facilities, the rationale for requiring SSRAs
 31

for HWCs did not apply to such facilities. Id. EPA further
explained that HWCs

are distinct from other types of TSDs[, such as
landfills, land treatment systems, etc.,] due to the wide
array of waste streams being fed to the unit, the
complex chemical processes throughout the
combustion unit, stack emissions comprised of a wide
variety of compounds that are difficult to address, and
the potential to impact receptors for several square
miles due to stack dispersion.

Id. Finally, the agency noted that, “to the extent permitting
authorities believe there are problems with other types of TSDs,
they can impose requirements and request additional
information, including an SSRA in accordance with [40 C.F.R.]
§ 270.10(k).” Id. This response to the Coalition’s comments
was sufficient to satisfy the requirements of the APA.

IV

Finally, we consider the Coalition’s attack on the HHRAP
guidance document. The Coalition contends that the HHRAP is
invalid because it was not promulgated pursuant to the notice-
and-comment procedures of the APA. See 5 U.S.C. § 553(b),
(c). While the “APA exempts from notice and comment
interpretive rules or general statements of policy,” Syncor Int’l
Corp. v. Shalala, 127 F.3d 90, 93 (D.C. Cir. 1997) (citing 5
U.S.C. § 553(b)), the Coalition maintains that the guidance
document is not a policy statement but a legislative rule that is
subject to those procedures.

EPA correctly points out that the merits of this APA
challenge are inextricably linked to our jurisdiction to hear it.
RCRA § 7006(a)(1) invests this court with jurisdiction over
 32

petitions for review of EPA “action . . . in promulgating any
regulation, or requirement under [RCRA,] or denying any
petition for the promulgation, amendment or repeal of any
regulation under [RCRA].” 42 U.S.C. § 6976(a)(1). We have
held that this provision gives us “jurisdiction over ‘only final
regulations, requirements, and denials of petitions to
promulgate, amend or repeal a regulation.’” General Motors,
363 F.3d at 448 (quoting Molycorp, 197 F.3d at 545); see, e.g.,
American Portland Cement Alliance, 101 F.3d at 774-76. Under
our precedents, the question of whether an agency document is
a final “regulation . . . or requirement” under RCRA is
substantially similar to the question of whether it is a legislative
rule under the APA.14 Thus, because we must decide whether
we have jurisdiction before we may reach the merits, see Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998), and
because there is no dispute that the HHRAP guidance document

14
Compare General Motors, 363 F.3d at 448 (holding that “the
ultimate focus of the inquiry” into whether this court has jurisdiction
under RCRA “is whether the agency action partakes of the
fundamental characteristic of a regulation, i.e., that it has the force of
law” (quoting Molycorp, 197 F.3d at 545) (internal quotation mark
omitted)), and General Elec., 290 F.3d at 382 (holding, with respect
to a jurisdictional provision analogous to RCRA, that agency action
is reviewable if it “binds private parties or the agency itself with the
‘force of law’”), with McLouth Steel Prods. Corp. v. Thomas, 838
F.2d 1317, 1320 (D.C. Cir. 1988) (holding that an agency
pronouncement is a “policy statement” exempt from APA notice and
comment if it “first, does not have ‘a present-day binding effect,’ that
is, it does not ‘impose any rights and obligations,’ and second,
‘genuinely leaves the agency and its decisionmakers free to exercise
discretion.’” (quoting Community Nutrition Inst. v. Young, 818 F.2d
943, 946 & n.4 (D.C. Cir. 1987))). Indeed, our jurisdictional cases
routinely cite APA cases as authority. See, e.g., General Elec., 290
F.3d at 382 (citing McLouth and Community Nutrition); American
Portland Cement Alliance, 101 F.3d at 776 (citing McLouth).
 33

was not issued pursuant to APA rulemaking procedures, there
are only two options: “Either the petition must be dismissed for
lack of jurisdiction” because the guidance is not a final
regulation under 42 U.S.C. § 6976(a)(1), “or the . . . [g]uidance
should be vacated” on the merits because it is a final regulation
but was promulgated in violation of the APA. General Elec.,
290 F.3d at 385 (internal quotation marks omitted).

“Three criteria determine whether a regulatory action
constitutes the promulgation of a regulation” for purposes of
RCRA § 7006(a)(1): “‘(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.’” General Motors, 363 F.3d at 448 (quoting
Molycorp, 197 F.3d at 545). The first two criteria militate
against our jurisdiction here: the HHRAP states that it is not “a
regulation itself,” HHRAP at ii (J.A. 424), and the document
was not published in either the Federal Register or the Code of
Federal Regulations. Nonetheless, we have held that these
criteria merely “‘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.’” General Motors, 363 F.3d at 448 (quoting
Molycorp, 197 F.3d at 545).

Under this framework, we have jurisdiction to review the
HHRAP only if it “binds private parties or the agency itself with
the ‘force of law.’” General Elec., 290 F.3d at 382. “An agency
pronouncement [is] binding as a practical matter if it either
appears on its face to be binding, or is applied by the agency in
a way that indicates it is binding.” Id. at 383 (citation omitted).
As noted in Part II.B, the Coalition has expressly limited its
challenge to the face of the document, and makes no argument
that the agency has applied it in a way that indicates it is
 34

binding. Indeed, such an argument would be unavailable in any
event, as the HHRAP has not yet been applied to any facility.
See Oral Arg. Recording at 1:31:34. Similarly, the Coalition
insists, its challenge “does not involve any prediction of how
EPA will actually implement th[e] regulatory regime” in the
future. Coalition Reply Br. 2.

So limited, our disposition of the challenge is
straightforward. We see nothing on the face of the HHRAP to
suggest that it is binding. To the contrary, the document
declares that “this guidance does not impose legally binding
requirements on EPA, states, or the regulated community, and
may not apply to a particular situation based on the specific
circumstances of the combustion facility.” HHRAP at ii (J.A.
424). Its pages are replete with words of suggestion: its
provisions are described as “recommendations,” id., that
permitting authorities are “encourage[d]” to “consider,” id. at 1-
8 (J.A. 460). The document states that “EPA and state
regulators . . . retain their discretion to use approaches on a case-
by-case basis that differ from those recommended in this
guidance where appropriate.” Id. at ii (J.A. 424). It further
states that “[w]hether the recommendations in this [document]
are appropriate in a given situation will depend on facility-
specific circumstances.” Id. Moreover, these statements are
fully in accord with EPA’s explanation of why “this is an area
that is uniquely fitted for a guidance approach, rather than
regulation”: “[R]isk assessors must have the flexibility to make
adjustments for the specific conditions present at the source, and
. . . should be free to use the most recent [assessment tools]
available rather than be limited to those that may be out-of-date
because a regulation has not been revised.” Proposed Rule, 69
Fed. Reg. at 21,330.

The Coalition rests its challenge to the HHRAP almost
exclusively on our decision in Appalachian Power Co. v. EPA,
 35

in which we found that another EPA guidance document was in
fact a binding legislative rule. See 208 F.3d 1015, 1020-23
(D.C. Cir. 2000). But the factors that led us to that conclusion
in Appalachian Power are not present here. Among other
things, the agency does not treat the HHRAP as binding,15 has
not “le[d] private parties or . . . permitting authorities to believe
that it will declare permits invalid unless they comply with [its]
terms,” id. at 1021, does not say that the HHRAP represents the
agency’s “settled position,” id. at 1022, and has not issued a
document that “reads like a ukase,” id. at 1023. Unlike the
guidance at issue in Appalachian Power, the HHRAP does not
“command[,]” does not “require[,]” does not “order[,]” and does
not “dictate[.]” Id. at 1023; cf. General Elec., 290 F.3d at 380,
384-85 (finding that an EPA risk assessment document was a
legislative rule, “because on its face it purports to bind both
applicants and the Agency with the force of law”). Moreover,
the Coalition has forsaken the contention -- also important in
Appalachian Power -- that permitting authorities, “with EPA’s
Guidance in hand, are insisting on” compliance with the
guidance during the site-by-site permitting process. 208 F.3d at
1023.

The Coalition protests that, although the current version of
the HHRAP employs language of suggestion, an earlier version
contained the language of command. It stresses that EPA issued
the current version after we issued Appalachian Power, and that
the agency expressly stated that it had edited the document’s
language in response to that decision. See Final Rule, 70 Fed.
Reg. at 59,513. But we can hardly fault EPA for responding to
an opinion of this court. There is nothing improper about an

15
To the contrary, the agency insists that the HHRAP does “not
impose mandatory requirements,” and that it “offers numerous
recommendations, but requires nothing.” Final Rule, 70 Fed. Reg. at
59,513.
 36

agency changing its language in light of one of our decisions or
relying on the new language to defend itself upon judicial
review. The Coalition is right, of course, that an agency’s
pronouncement that a document is non-binding will not make it
so where there is evidence -- or practice -- to the contrary. See
Appalachian Power, 208 F.3d at 1023. But the Coalition points
to no such evidence here, and we have previously relied on
similar disclaimers as relevant to the conclusion that a guidance
document is non-binding. See Molycorp, 197 F.3d at 546;
American Portland Cement Alliance, 101 F.3d at 776.

In short, having limited itself to a challenge based solely on
whether the HHRAP guidance document is binding on its face,
the Coalition has failed to point to any evidence suggesting that
the document is anything other than what EPA asserts it is: a
non-binding statement of EPA policy. Accordingly, we
conclude that the HHRAP is not a final “regulation . . . or
requirement” under RCRA § 7006(a)(1), and therefore that we
are without jurisdiction to review it.

V

For the foregoing reasons, we deny the Coalition’s petition
for review with respect to its challenge to 40 C.F.R. § 270.10(l).
With respect to its challenge to the HHRAP guidance document,
we dismiss the petition for lack of jurisdiction.

So ordered.
 37

APPENDIX

40 C.F.R. § 270.10

§ 270.10 General application requirements.

* * * *

(l) If the Director concludes, based on one or more of the factors
listed in paragraph (l)(1) of this section that compliance with the
[MACT standards] alone may not be protective of human health
or the environment, the Director shall require the additional
information or assessment(s) necessary to determine whether
additional controls are necessary to ensure protection of human
health and the environment. This includes information
necessary to evaluate the potential risk to human health and/or
the environment resulting from both direct and indirect exposure
pathways. The Director may also require a permittee or
applicant to provide information necessary to determine whether
such an assessment(s) should be required.

(1) The Director shall base the evaluation of whether
compliance with the [MACT standards] alone is protective
of human health or the environment on factors relevant to
the potential risk from a hazardous waste combustion unit,
including, as appropriate, any of the following factors:

(i) Particular site-specific considerations such as
proximity to receptors (such as schools, hospitals,
nursing homes, day care centers, parks, community
activity centers, or other potentially sensitive
receptors), unique dispersion patterns, etc.;
 38

(ii) Identities and quantities of emissions of persistent,
bioaccumulative or toxic pollutants considering
enforceable controls in place to limit those pollutants;

(iii) Identities and quantities of nondioxin products of
incomplete combustion most likely to be emitted and
to pose significant risk based on known toxicities
(confirmation of which should be made through
emissions testing);

(iv) Identities and quantities of other off-site sources of
pollutants in proximity of the facility that significantly
influence interpretation of a facility-specific risk
assessment;

(v) Presence of significant ecological considerations,
such as the proximity of a particularly sensitive
ecological area;

(vi) Volume and types of wastes, for example wastes
containing highly toxic constituents;

(vii) Other on-site sources of hazardous air pollutants
that significantly influence interpretation of the risk
posed by the operation of the source in question;

(viii) Adequacy of any previously conducted risk
assessment, given any subsequent changes in
conditions likely to affect risk; and

(ix) Such other factors as may be appropriate.