American Portland Cement Alliance v. Environmental Protection Agency and Carol M. Browner, Cement Kiln Recycling Coalition, Intervenors

Citations: 101 F.3d 772; 322 U.S. App. D.C. 99Docket: 95-1230, 95-1231, 95-1237 and 95-1252

Court: Court of Appeals for the D.C. Circuit; December 13, 1996; Federal Appellate Court

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The case involves the American Portland Cement Alliance and the Cement Kiln Recycling Coalition petitioning against the Environmental Protection Agency (EPA) regarding the agency's "Regulatory Determination on Cement Kiln Dust." The core issue is whether the court has jurisdiction under Section 7006(a)(1) of the Resource Conservation and Recovery Act (RCRA) to review the EPA's determination that cement kiln dust does not require full hazardous waste regulation under Subtitle C of RCRA, but will instead be subjected to tailored standards. 

The Safe Cement Alliance of Texas, representing environmental groups and local residents, challenges the EPA's decision as arbitrary and capricious, asserting jurisdiction for review. In contrast, the American Portland Cement Alliance contends that the court lacks jurisdiction, arguing that the Regulatory Determination is not a reviewable action under RCRA but merely a precursor to future rulemaking. If jurisdiction is found, American Portland seeks to contest the legality and scientific basis of the tailored standards. 

Ultimately, the court concludes that the Regulatory Determination is not reviewable under RCRA Section 7006(a)(1) and dismisses the petitions for lack of jurisdiction. The document also references the Bevill Amendment, which exempts certain low-toxicity wastes, including cement kiln dust, from Subtitle C regulations, and outlines the steps EPA has taken under this amendment, including excluding cement kiln dust from hazardous waste definitions and submitting a report to Congress on its environmental impact.

On February 7, 1995, the EPA published its Regulatory Determination on Cement Kiln Dust, concluding that further control is necessary to safeguard public health and prevent environmental harm from its disposal. Instead of applying existing Subtitle C hazardous waste regulations, which the EPA deemed infeasible for the cement industry, the agency decided to create a program tailored to specific local conditions to manage identified risks while reducing compliance costs. Until these new regulations are established, cement kiln dust will maintain its Bevill exemption and will not be classified under RCRA Subtitle C.

Judicial review of certain EPA actions is governed by RCRA 7006(a), which allows for court review of final regulations, requirements, and the denial of petitions related to RCRA regulations, exclusively in the U.S. Court of Appeals for the District of Columbia. Unlike other environmental statutes, RCRA does not explicitly authorize review of EPA determinations in a Circuit Court. However, the court has previously addressed challenges to regulatory determinations linked to the Bevill Amendment, despite not explicitly ruling on jurisdiction in those cases. The court acknowledges that its jurisdiction is limited to what Congress has granted, prompting a reassessment of this issue.

Petitioners' arguments reinforce the conclusion that under the plain language of 7006(a), Congress intended for the court to have original jurisdiction over three specific types of agency actions, but not over "determinations" as used in this context. Although Congress has granted the court jurisdiction over "determinations" in other statutes, the term "determination" in 42 U.S.C. 6921(b)(3)(C) indicates a distinct category separate from "regulation," as highlighted by the Bevill Amendment. This distinction suggests that Congress did not intend to confer jurisdiction over such determinations. Past assumptions of jurisdiction by the court do not set a precedent for future cases when jurisdictional issues were not expressly decided.

The primary inquiry focuses on whether the language of 7006(a) improperly limits the court's jurisdiction given Congress's distinction between "regulations" and "determinations." Factors such as the agency's characterization of its action, publication in official registries, and the binding nature of the action are relevant to determine judicial review eligibility. The EPA has characterized its action as a "determination," not a regulation, and stated that no regulatory flexibility analysis was required, indicating it does not establish new regulatory controls. Furthermore, the court has noted that the publication of an action in the Code of Federal Regulations is critical to distinguishing regulations from policy statements, and the EPA has not published its Regulatory Determination regarding cement kiln dust in the Code, which supports the conclusion that the action is not subject to judicial review.

The court assesses the reviewability of agency actions by evaluating their binding effects on interested parties and the agency itself, as established in McLouth Steel Products Corp. v. Thomas. Under the Administrative Procedure Act (APA), a "rule" is defined as an agency statement with general or specific applicability designed to implement or interpret law or policy. The APA also allows for staged rulemaking, deferring review of initial steps until the regulatory process concludes. Safe Cement argues that the EPA's Regulatory Determination, while not designated as a final regulation, has binding implications akin to reviewable actions under RCRA 7006(a)(1). Safe Cement challenges the EPA's decision to not fully regulate cement kiln dust under RCRA Subtitle C, maintaining that the EPA's stance is an unequivocal statement impacting future law and policy. However, the EPA clarifies that its intent is to defer policymaking until tailored standards are developed, distinguishing between intent to regulate and the actual promulgation of regulations. The EPA's Regulatory Determination indicates further analysis is needed before final regulations can be enacted and does not limit its discretion in creating a tailored regulatory framework. The court cannot evaluate claims of potential harm or adequacy of health protections until the tailored regulations are finalized. Additionally, the unpredictability of judicial review of preliminary agency actions relates to ripeness rather than jurisdiction, suggesting that review at this stage is premature due to the ongoing regulatory process.

Safe Cement asserts that the EPA's process for determining regulations on cement kiln dust is subject to judicial review, based on Congress's directive in RCRA 3001(b)(3)(C) for a "rulemaking-type" approach. However, the distinction between the availability of substantive judicial review and the procedural requirements of notice and comment is emphasized. RCRA 3001(b)(3)(C) indicates that the outcome of the notice and comment process will inform future regulatory decisions rather than establish immediate regulations. While a timetable was established for the EPA's Regulatory Determination, no deadlines were set for subsequent regulations.

The EPA supports Safe Cement's claim of jurisdiction and presents four arguments, three rooted in statutory language and one in pragmatic concerns, but none are deemed convincing. The EPA argues that its determination indicating some form of Subtitle C regulation is binding, yet it admits that no final decision has been made regarding specific regulations. The only binding aspect acknowledged by the EPA is the necessity for some regulation under Subtitle C, which is not contested by Safe Cement.

Furthermore, the EPA claims that its extension of the Bevill Amendment exemption for cement kiln dust until tailored standards are established effectively reopens the exemption for comment and judicial review. This assertion is rejected as the EPA failed to demonstrate that its actions were intended to reopen the exemption, reducing its argument to a retrospective justification that does not align with the regulatory framework. Overall, the Regulatory Determination retains significant flexibility, allowing the EPA to navigate between full and no Subtitle C regulation without being bound by the specific outcomes of the determination.

Judicial review of agency actions must rely on the administrative record at the time of the action, not on later rationales provided during litigation. Reviewability of agency actions is determined by their nature when taken, irrespective of subsequent characterizations by the agency. Congress mandated the continuation of the Bevill exclusion per RCRA 3001(b)(3)(A), which remains effective until regulations under subparagraph (C) are promulgated. The EPA's regulation exempting cement kiln dust reflects statutory language rather than a new determination. Consequently, the Regulatory Determination indicating future regulatory intentions does not terminate the exemption, as the Bevill Amendment itself preserves it.

Judicial review under RCRA 7006(a)(1) pertains to regulations, not determinations, suggesting that Congress anticipated review only after final regulations are issued. The EPA attempts to equate its Regulatory Determination to a denial of a petition, but the court lacks authority to amend statutory language to allow such review. The EPA's call for a "practical" interpretation of RCRA’s review provision is unsupported by precedent and does not override congressional intent to delay review until regulatory processes conclude. Concerns about duplicative litigation if challenges are brought in district courts rather than this court were cited by the EPA, but the court maintains that review based on the administrative record is more suitable than allowing district courts to make original findings. The Supreme Court's stance on the placement of initial APA review reinforces this approach, emphasizing that absent clear congressional intent, the courts of appeals should handle initial reviews.

The EPA's consideration of the Regulatory Determination regarding cement kiln dust regulations is challenged based on the interpretation of the Hobbs Act, specifically 42 U.S.C. 2239(a)(1), which the court deemed "ambiguous on its face." In contrast, RCRA section 7006(a) and the Bevill Amendment (RCRA 3001(b)(3)(C)) clearly indicate that Congress intended for judicial review of cement kiln dust regulations to occur only after final regulations are issued. Therefore, the Regulatory Determination is not subject to judicial review under section 7006(a)(1), leading to the dismissal of the petitions.

The consolidated appeal includes multiple parties, such as the Cement Kiln Recycling Coalition and various environmental and cement industry organizations, along with Carol M. Browner, the EPA Administrator. American Portland acknowledges that if the Regulatory Determination is unreviewable, its challenge to the EPA's decision regarding specialized regulations should also be dismissed. RCRA section 3001(b)(3)(A) states that listed wastes are regulated under other applicable laws until six months after the required study and subsequent regulations are promulgated. Section 3001(b)(3)(C) requires the Administrator to determine whether to promulgate regulations after public hearings, with the results published in the Federal Register, explaining the basis for the determination. Neither Safe Cement nor the EPA claim that the Regulatory Determination is a "requirement" under section 7006. The Clean Air Act allows for review of standards and regulations, while the Clean Water Act permits judicial review of certain EPA actions in Circuit Courts of Appeals.