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American Portland Cement Alliance v. EPA

ELR Citation: 27 ELR 20535
Nos. 95-1230, 101 F.3d 772/(D.C. Cir., 12/13/1996)

The court holds that it lacks jurisdiction under §7006(a)(1) of the Resource Conservation and Recovery Act (RCRA) to review a petition by a coalition of environmental and citizen groups challenging the U.S. Environmental Protection Agency's (EPA's) regulatory determination that exempts cement kiln dust from full Subtitle C regulation. The court first holds that by its plain terms, RCRA §7006(a)(1) provides for the court's review of only three types of EPA actions: the promulgation of final regulations; the promulgation of requirements; and the denial of petitions for the promulgation, amendment, or repeal of RCRA regulations. RCRA does not explicitly provide for review of EPA determinations in a circuit court. The court next holds that although Congress used the term "determination" in the jurisdictional passage of §7006(a)(2) and has expressly given the court original jurisdiction over determinations in other statutes, it did not give the court jurisdiction to review determinations in this context. That the court has taken jurisdiction in the past does not affect the analysis because jurisdictional issues that were assumed but never expressly decided in prior opinions do not thereby become precedents. The court notes that EPA labeled its action a determination rather than a regulation. Further, EPA has not published its regulatory determination on cement kiln dust in the Code of Federal Regulations. In addition, until the tailored regulations for cement kiln dust are promulgated, neither the court nor the challengers can evaluate whether EPA's regulatory regime will result in substantial harm, or whether, instead, the regime will provide sufficient protection for health and safety as required by RCRA.

The court then finds unpersuasive EPA's arguments for finding jurisdiction. First, EPA's effort to divide the regulatory determination into portions fails because EPA's determination retained such broad flexibility that EPA has not bound itself in any significant way by making it. Second, EPA's characterization of the regulatory determination as reopening the Bevill Amendment for judicial review amounts to little more than a post hoc effort to recast its earlier action to fall within the scope of RCRA §7006(a)(1). A determination of reviewability must be predicated on the nature of an agency action when undertaken, not on the agency's characterization after the fact. Third, nowhere did the court suggest that a "practical" construction of a judicial review statute could override congressional intent to defer review until the completion of a regulatory process. Finally, the provisions of RCRA §7006(a), coupled with the requirement of the Bevill Amendment that EPA issue a determination and, if necessary, subsequent regulations, makes clear that Congress intended this court's review of the cement kiln dust regulations to occur only after the final regulations are promulgated. The court then holds that because the regulatory determination is not an action judicially reviewable under §7006(a)(1), the petition should be dismissed.

Counsel for Petitioners
Richard G. Stoll Jr.
American Portland Cement Alliance
1225 I St. NW, Ste. 300, Washington DC 20005
(202) 408-9494

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

Before: WALD, HENDERSON and ROGERS, Circuit Judges.