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Horsehead Resources Dev. Co. v. EPA

Citation: 28 ELR 20426
No. 95-1286, 130 F.3d 1090/(D.C. Cir., 12/12/1997)

The court holds that an electric arc furnace dust recycler's petition to review a U.S. Environmental Protection Agency's (EPA's) rule that excludes electric arc furnace dust from the Resource Conservation and Recovery Act's (RCRA's) hazardous waste list was not filed within RCRA § 7006's 90-day filing window and, thus, the court lacks jurisdiction to review the petition. RCRA § 7006(a)(1) establishes a 90-day filing window to petition for the promulgation, amendment, or repeal of any RCRA regulation. The court first holds that RCRA § 7006(a)(1)'s use of the phrase "within" compels the conclusion that the statute establishes a filing window, not a filing deadline. The court next holds that the filing window opens when the rule is promulgated, and promulgation as used in RCRA § 7006 means Federal Register publication. The court rejects the recycler's argument that a rule is promulgated on the day it is signed. Although EPA has interpreted its obligation to promulgate a rule by a certain date to be met by the Administrator's signing of the rule, the court cannot agree that merely signing the final rule is sufficient to open RCRA § 7006(a)(1)'s filing window. Moreover, the recycler's interpretation of promulgation is inconsistent with Congress' unambiguously expressed intent that petitions be filed within 90 days of promulgation. If RCRA § 7006(a)(1)'s filing window opens on the date of signature, it must close 90 days after signature. Yet, if EPA had not distributed copies of the signed delisting rule in advance of publication, and if interested parties had not otherwise received actual notice of the rule, the signature-to-publication delay would have effectively shortened the filing period by two weeks.

The court also rejects the recycler's argument that, even if the de-listing rule was not promulgated when signed, EPA's prepublication distribution of it should be deemed to constitute promulgation. The circuit precedent cited by the recycler applies only in the absence of statutory language providing when a matter is ripe for review. The court further holds that EPA has a regulation that forecloses the recycler's interpretation of promulgation. The plain import of the regulation is that until Federal Register publication has occurred, the Administrator has not made a final decision on a delisting petition. And because only final agency action is reviewable under either RCRA § 7006 or the Administrative Procedure Act, promulgation cannot occur in advance of Federal Register publication.

Counsel for Petitioner
Paul E. Gutermann
Akin, Gump, Strauss, Hauer & Feld
1333 New Hampshire Ave. NW, Ste. 400, Washington DC 20036
(202) 887-4000

Counsel for Respondents
Robert I. Dodge
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Wald and Garland, JJ.