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18 ELR 20255 | Environmental Law Reporter | copyright © 1988 | All rights reserved National Solid Wastes Management Association v. Thomas No. 86-1727 (D.C. Cir. October 27, 1987)The court hold that it lacks jurisdiction under § 7006(a) of the Resource Conservation and Recovery Act (RCRA) to review the Environmental Protection Agency's RCRA Groundwater Monitoring Technical Enforcement Guidance Document, since the guidance document is not a regulation or requirement subject to judicial review under § 7006(a). Counsel for Petitioners Counsel for Respondents Before Wald, Mikva and Edwards, JJ. Per Curiam: Memorandum In December 1986, petitioners filed a petition for review of a document entitled "RCRA Ground-Water Monitoring Technical Enforcement Guidance Document" ("TEGD") issued by the Office of Waste Programs Enforcement in EPA's Office of Solid Waste and Emergency Response, in September 1986. Respondents, Lee M. Thomas, Administrator, and the United States Environmental Protection Agency ("EPA"), move this Court to dismiss the petition for review. Petitioners have responded in opposition and the EPA has replied to the response. The EPA argues that this Court lacks jurisdiction over this petition for review. Petitioners assert that this Court has jurisdiction under Section 7006(a) of RCRA, 42 U.S.C. § 6976(A)(1) (1982), which provides that "a petition for review of action of the Administrator in promulgating any regulation, or requirement under this chapter or denying any petition for the promulgation, amendment or repeal of any regulation under this chapter may be filed only in the United States Court of Appeals for the District of Columbia. . . ." The Court's jurisdiction over this petition depends upon whether the TEGD is a regulation or requirement promulgated by the Administrator. The Court agrees with the EPA that the TEGD is not a regulation or requirement. The issue of whether a given document is a regulation or not has often arisen in controversies concerning the distinction between a regulation and a statement of policy. See, e.g., Telecommunications Research & Action Center v. FCC, 800 F.2d 1181 (D.C. Cir. 1986); Brock v. Cathedral Bluffs Shale Oil Co., [18 ELR 20256] 796 F.2d 533 (D.C. Cir. 1986); Pacific Gas & Electric Co. v. FPC, 506 F.2d 33 (D.C. Cir. 1974). These cases provide guidance in determining whether or not the TEGD is a regulation or requirement for purposes of Section 7006(a) of RCRA, 42 U.S.C. § 6976(a)(1) (1982). A court, in determining whether a document is a regulation or a requirement, will consider the agency's own characterization of the document. See, e.g., Telecommunications Research & Action Center, 800 F.2d at 1186; Cathedral Bluffs Shale Oil Co., 796 F.2d at 537; Pacific Gas & Electric Co., 506 F.2d at 38. In the Notice of Availability published in the Federal Register, the EPA characterized the TEGD as a "guidance document intended to assist the Agency and States to evaluate the adequacy of ground-water monitoring systems at facilities regulated under the Resource Conservation and Recovery Act." 5 Fed. Reg. 34247 (1986). This purpose is reiterated in the document itself, which also states that "[i]t is not a regulation and should not be used as such." TEGD at ii. In its Reply on Motion To Dismiss Petition for Review, the EPA acknowledges that in any future compliance proceedings the TEGD will not be entitled to conclusive weight and will not be applied by a reviewing court as a binding legal document. Respondents' Reply on Motion To Dismiss Petition for Review at 6. Petitioners correctly note that an agency's characterization of its own action is not conclusive, but beyond conclusory assertions that the TEGD resembles a regulation, they have not provided reasons to disregard the EPA's characterization of its own document. The fact that the TEGD has not been published in either the Federal Register or the Code of Federal Regulations is further evidence that the TEGD is not a regulation. "Failure to publish in the Federal Register is indication that the statement in question was not meant to be a regulation . . . ." Cathedral Bluffs Shale Oil Co., 796 F.2d at 538 (citation and emphasis omitted). Failure to publish the TEGD in the Code of Federal Regulations is even more conclusive, as such publication has been understood as a significant criterion for distinguishing regulations from other types of agency action. See, e.g., Telecommunications Research & Action Center, 800 F.2d at 1186; Cathedral Bluffs Shale Oil Co., 796 F.2d at 539. Finally, there is not indication in the TEGD itself or in the Notice of Availability published in the Federal Register that the TEGD was promulgated by the Administrator. For the foregoing reasons, we conclude that the TEGD is not a regulation or a requirement. The TEGD has no binding legal force on petitioners, and in any future enforcement proceeding regarding a ground-water monitoring system, the methods set forth in the TEGD are subject to challenge. Pacific Gas & Electric Co., 506 F.2d at 38. Because this court's jurisdiction is limited by Section 7006(a), 42 U.S.C. § 6976(a)(1) (1982), to reviewing the "action of the Administrator in promulgating any regulation, or requirement under [RCRA] . . .," we must dismiss the petition for review for lack of jurisdiction. See United Technologies v. EPA, 821 F.2d 714, 720-21 [17 ELR21015] (D.C. Cir. 1987). Order Upon consideration of Respondents' Motion to Dismiss Petition for Review and the response and reply thereto; Petitioners' Motion for Summary Reversal of Agency Action and the opposition and reply thereto; and Petitioners' Motion to Supplement Attachments to Petitioners' Memorandum in Support of Motion for Summary Reversal and the opposition and reply thereto, it is ORDERED by the court that the motion to dismiss be granted. It is FURTHER ORDERED that all remaining motions be dismissed as moot. The Clerk is directed to withhold issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing. See D.C. Cir. Rule 15. 18 ELR 20255 | Environmental Law Reporter | copyright © 1988 | All rights reserved |