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Barrick Goldstrike Mines Inc. v. Browner

Citation: 30 ELR 20673
No. No. 99-5298, 215 F.3d 45/(D.C. Cir., 06/16/2000)

The court holds that a metal mining operator's claims against the U.S Environmental Protection Agency (EPA) for allegedly revising the Emergency Planning and Community Right-To-Know Act's (EPCRA's) toxic release inventory program as it applies to the mining industry without formal rulemaking are ripe. The court first holds that the operator's claim that an EPA guidance document on metal mining industries under EPCRA revised the de minimis exception to the program without conducting a rulemaking is ripe. EPA admitted that its position on the application of the de minimis exception to waste rock as set forth in a guidance is final. Moreover, there is no doubt that EPA will refuse to apply the exception to the operator's waste rock and that its refusal to do so has legal consequences. Thus, the guidance constitutes final agency action. Further, this issue is ripe for judicial review because it involves purely legal questions. The court next holds that the operator's claim that EPA's guidance is inconsistent with EPCRA §33(c) and corresponding regulations, which do not permit the Agency to treat as "manufacturing" the conversion of one metal compound into another within the same compound category, is ripe. In addition, the court holds that the operator's claim that the guidance and a 1997 letter require it to report that it "processed" naturally occurring metal impurities that it could not completely remove from gold bars in contravention of EPCRA is ripe. The letter is firm and conclusive, as is the guidance document, they have legal consequences, and the issue presents a pure question of law. The court, therefore, reverses the judgment of the district court and remands the case.

Counsel for Appellant
Richard E. Schwartz
Crowell & Moring
1001 Pennsylvania Ave. NW, Washington DC 20004
(202) 624-2500

Counsel for Appellees
Todd S. Kim
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Edwards and Garland, JJ.