United States v. Magnesium Corp. of America ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
August 17, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
MAGNESIUM CORPORATION OF
AMERICA; RENCO METALS; THE
RENCO GROUP; IRA L. RENNERT;
IRA LEON RENNERT REVOCABLE
No. 08-4185
TRUST,
Defendants,
and
U.S. MAGNESIUM LLC,
Defendant-Intervenor-
Appellee.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 2:01-CV-00040-DB)
Robert H. Oakley (John C. Cruden, Acting Assistant Attorney General; Lisa
Jones; and David Street, with him on the briefs), Environment & Natural
Resources Division, U.S. Department of Justice, Washington, D.C., for Plaintiff-
Appellant United States of America.
Michael D. Zimmerman (Alan L. Sullivan and Troy L. Booher with him on the
brief), Snell & Wilmer, L.L.P., Salt Lake City, UT, for Defendants Magnesium
Corporation of America, Renco Metals, The Renco Group, Ira L. Rennert, and Ira
Leon Rennert Revocable Trust.
Francis M. Wikstrom (David W. Tundermann, M. Lindsay Ford, and Juliette P.
White, with him on the brief), Parsons Behle & Latimer, Salt Lake City, UT, for
Defendant-Intervenor-Appellee U.S. Magnesium LLC.
Before TYMKOVICH, EBEL, and GORSUCH, Circuit Judges.
GORSUCH, Circuit Judge.
As its name advertises, U.S. Magnesium produces magnesium, though in
doing so it also generates various waste byproducts. This lawsuit concerns five of
those wastes. The government says that U.S. Magnesium’s handling of the wastes
must but hasn’t complied with regulations promulgated under Subtitle C of the
Resource Conservation and Recovery Act of 1976 (“RCRA”). For its part, U.S.
Magnesium challenges the premise of the government’s suit, arguing that the
Environmental Protection Agency (“EPA” or the “Agency”) exempted the five
wastes from Subtitle C’s strictures in a prior interpretation of its own regulation.
And, U.S. Magnesium says, the Agency cannot change that interpretation now, at
least not without first complying with the notice and comment procedures of the
Administrative Procedure Act (“APA”). At summary judgment, the district court
agreed with U.S. Magnesium and entered judgment in its favor.
We must vacate that judgment. Even if we assume with U.S. Magnesium
that a definitive regulatory interpretation prohibits an agency from later changing
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course and issuing a new interpretation without first undergoing notice and
comment, that’s simply not our case. The only prior EPA interpretation U.S.
Magnesium can point to is, at best, a tentative one. Because EPA never previously
adopted a definitive interpretation, it remained free, even under the legal
precedents on which U.S. Magnesium seeks to rely, to change its mind and issue a
new interpretation of its own regulations without assuming notice and comment
obligations.
I
U.S. Magnesium mines and processes magnesium at its plant in Rowley,
Utah, on the western shore of the Great Salt Lake. 1 The Rowley facility, as it’s
known, extracts primary magnesium using what U.S. Magnesium refers to as the
1
U.S. Magnesium is just the latest owner of this facility. From 1980 to
1989, it was owned by Amax Inc. Amax sold the facility in 1989 to Magnesium
Corporation of America (“MagCorp”), which in turn sold all of its assets to U.S.
Magnesium in 2002. Both MagCorp and U.S. Magnesium, however, are owned
and controlled by the same corporate parent, The Renco Group, which in turn is
managed by private trusts created for the benefit of Ira Rennert and his family.
See Second Am. Compl., U.S. App. Vol. I at 96-98; Answer Br., Corporate
Disclosure Statement; Opening Br. at 6 & n.3. The government thus brought its
lawsuit against not just U.S. Magnesium, but also against the various so-called
“Renco parties”: Renco Metals, Inc., Renco Group, the Ira Rennert Revocable
Trust, and Ira Rennert himself. See Opening Br. at 6 & n.3; Second Am. Compl.,
U.S. App. Vol. I. at 110-13. (Other parties named in the original complaint were
later dismissed by operation of superseding complaints. See U.S. App. Vol. I. at
6-7.) For ease of reference and except as otherwise noted, we refer to the
appellees here collectively as “U.S. Magnesium.”
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“anhydrous” process. 2 That process — intricate, sophisticated, and well known to
the parties — yields a variety of dangerous waste products. To make those waste
products less dangerous, the facility uses a number of pollution-control measures.
And many of these measures in turn generate other wastes, some of which are
dangerous in their own right. This case concerns the interaction between five such
“pollution-control wastes” and RCRA. By way of background, we first outline the
relevant RCRA regulatory history (Section I.A) and the history of this lawsuit
(Section I.B), before turning to our analysis of the appeal now before us (Section
II).
A
In Subtitle C of RCRA, Congress required EPA to promulgate regulations
establishing a comprehensive regulatory scheme for the transportation, treatment,
and disposal of hazardous wastes. See 42 U.S.C. §§ 6921-6939f. Meanwhile,
Subtitle D of the statute addressed the regulation of nonhazardous solid wastes and
authorized EPA to prepare regulations subjecting these wastes to less rigorous
requirements. See id. §§ 6941-6949a.
2
A brief vocabulary primer may be in order. The parties agree that
“primary magnesium processing” refers to the extraction of magnesium directly
from ore or mineral deposits, as opposed to the reprocessing of scrap metal. See
Answer Br. at 4. “Anhydrous” literally means “without water,” and U.S.
Magnesium apparently uses the term to indicate the fact that many of the key
chemical reactions in the facility’s magnesium production process do not require
the use of any water. See Opening Br. at 5; see also U.S. Magnesium’s
Memorandum in Support of Motion for Partial Summary Judgment (6/26/06), at 5
n.6.
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After RCRA’s enactment, EPA in 1978 proposed regulations implementing
Subtitle C for notice and comment. Under that proposal, wastes related to the
processing of ores or minerals generally were to be subject to Subtitle C, rather
than Subtitle D. At the same time, mineral processing wastes produced in “very
large volumes” but that were believed to pose “relatively low” health risks — a
category apparently anticipated to include at least some of the wastes produced at
Rowley — were to benefit from less stringent Subtitle C regulations than other
hazardous wastes. See 43 Fed. Reg. 58,946, at 58,991-92 (1978). After proposing
its rule and receiving public comment, however, EPA changed its mind on this
particular point, and the final Subtitle C regulations the Agency issued in 1980
treated large volume, low risk mineral processing wastes as hazardous wastes
subject to the same stringent Subtitle C requirements as other such wastes. See 45
Fed. Reg. 33,154, at 33,173-75 (1980).
Just before EPA’s final Subtitle C regulations were to take effect, however,
Congress reentered the picture. Apparently unsatisfied with the Agency’s final
decision to subject all hazardous mineral processing wastes to more stringent
Subtitle C regulations, Congress enacted the so-called Bevill Amendment, named
for its principal legislative sponsor. See Pub. L. No. 96-482, 94 Stat. 2334,
codified at 42 U.S.C. § 6921(b)(3)(A)(ii). The Bevill Amendment essentially sent
EPA back to the drawing board when it came to wastes generated in connection
with the processing of ores and minerals. Congress required the Agency to
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conduct a “comprehensive study on the adverse effects on human health and the
environment, if any, of the disposal and utilization of solid waste from the
extraction, beneficiation, and processing of ores and minerals,” and to produce in
three years time a report for Congress’s consideration. 42 U.S.C. § 6982(p); see
also id. § 6982(f). To forestall any interstitial regulation, the Amendment required
EPA to postpone the application of Subtitle C regulations to all mineral processing
wastes until at least six months after the submission of the congressional report.
Id. § 6921(b)(3)(A). In addition, Congress required EPA to determine — or
redetermine, on the basis of “information developed or accumulated pursuant to
such study, public hearings, and comment” — whether it should regulate ore and
mineral processing wastes under Subtitle C or under a less stringent regime, such
as Subtitle D. Id. § 6921(b)(3)(C). See generally Envt’l Def. Fund v. EPA, 852
F.2d 1316, 1318-20 (D.C. Cir. 1988).
So it is that EPA set out to determine the proper scope of the so-called
Bevill exemption from RCRA Subtitle C. Eventually, the Agency published a
proposed rule laying out various criteria to identify which mineral processing
wastes should be held exempt from Subtitle C in light of the Bevill Amendment
and subject instead to less onerous regulations, the exact details of which the
Agency had yet to specify. 53 Fed. Reg. 41,288 (1988). In response to EPA’s call
for comments, the then-owner of the Rowley facility nominated various of the
wastes it produced for exemption under these criteria. Aple. Supp. App. at 11, 15.
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After various regulatory investigations and following more notice and
comment, EPA issued a new rule in September 1989. 54 Fed. Reg. 36,592 (1989).
This rule finalized the criteria a waste must meet to qualify for exemption from
Subtitle C. Among other things, the criteria required a candidate waste to be
“uniquely associated with mineral industry operations” and produced in “high
volumes” and with “low hazard” levels — thus closely tracking and elaborating
EPA’s initial proposal from back in 1978. See id. at 36,628-31. Applying the
criteria it had announced, EPA proceeded to opine that several wastes, including
“[p]rocess wastewater from primary magnesium production by the anhydrous
process” — the category of wastes at issue in this case — were likely candidates
for exemption, subject to further data collection and study, the required report to
Congress, and a final Agency determination. See id. at 36,631 & 36,642. See
generally Solite Corp. v. EPA, 952 F.2d 473, 480-82 (D.C. Cir. 1991) (per
curiam). 3
In July 1990, EPA submitted its Report to Congress on Special Wastes from
Mineral Processing. See 55 Fed. Reg. 32,135 (1990) (announcing availability of
report). The Report contained a detailed study of each of the various wastes
previously proposed for exemption and recommended the exemption of many,
3
A January 1990 rule later removed some wastes from the conditionally-
retained category and disqualified them from receiving any exemption, though the
rule didn’t alter the conditional status of magnesium processing wastes. See 55
Fed. Reg. 2322 (1990).
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including “[p]rocess wastewater from primary magnesium processing by the
anhydrous process,” id. at 32,136, though in doing so the Agency repeatedly noted
that its “findings” on this score remained “tentative,” id. at 32,135. 4 Accordingly,
EPA encouraged interested parties to review the Report and offer comments,
which the Agency said it would use “in conjunction with the Report . . . to make
the final regulatory determination.” Id.After publishing its Report to Congress and considering the public
comments it had invited, EPA promulgated a “[f]inal regulatory determination and
final rule” in June 1991. This rule sought to apply the criteria for exemption
announced in the Agency’s 1989 rule to certain candidate wastes. 56 Fed. Reg.
27,300, at 27,300 (1991). In so doing, EPA confirmed that “[p]rocess wastewater
from primary magnesium processing by the anhydrous process,” among many
other candidate wastes, now definitively qualified for exemption from Subtitle C
and should be subject to less onerous regulatory terms, mostly under Subtitle D.
Id. at 27,307. In this final rule, however, EPA did not purport to interpret the
4
Accord 55 Fed. Reg. at 32,137 (“[T]he Agency developed two approaches
for tentatively determining whether regulation under RCRA subtitle C is
warranted . . . .”) (emphasis added); id. (repeatedly describing what EPA “might
find” in the future); see also Report to Congress, U.S. App. Vol. I at 184-85
(listing “[p]rocess wastewater from primary magnesium processing by the
anhydrous process” among “Wastes EPA Might Tentatively Recommend to
Remain Under RCRA Subtitle D”); id. at 201 (“tentatively concluded”); id. at 202
(same).
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phrase “[p]rocess wastewater from primary magnesium processing by the
anhydrous process.” Id. at 27,306-07.
Beginning in 1991, EPA, the operators of the Rowley facility, and the State
of Utah engaged in a series of discussions, wrote letters, and debated what this
phrase encompasses and what it does not. Ultimately, the parties reached
loggerheads. U.S. Magnesium took the view that the 1991 final rule exempted
from Subtitle C all of the Rowley facility’s pollution-control wastes. The Agency
disagreed, arguing that its rule only exempted some such wastes and that others
remained subject to Subtitle C disposal requirements. This lawsuit followed in
2001.
B
In its 2001 complaint, the government sought injunctive relief and civil
penalties for various alleged violations of RCRA and its implementing regulations.
In 2005, the government filed an additional, related complaint — eventually
consolidated with its RCRA complaint — alleging violations of a different statute,
the Toxic Substances Control Act (“TSCA”). See U.S. App. Vol. I at 145-46. But
the heart of the lawsuit always was and remains the status of five wastes,
appropriately dubbed “the Complaint wastes.” Before the district court, the
government argued that these wastes don’t qualify for exemption from Subtitle C
because they’re not “[p]rocess wastewater from primary magnesium processing by
the anhydrous process,” as required by EPA’s 1991 rule. See Second Am. Compl.
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¶ 62, U.S. App. Vol. I at 109. This argument splits into two parts: according to
EPA, most of the Complaint wastes aren’t — in the words of the rule — “from
primary magnesium processing,” while the final remaining Complaint waste
doesn’t qualify as a “wastewater.” Some explanation is in order. The company’s
magnesium production process generates large amounts of chlorine gas, which the
company then processes to produce hydrochloric acid and chlorine for its own use
and for sale. And the company’s hydrochloric acid and chlorine production
processes themselves yield various wastes. The government argued to the district
court that these wastes — four of the five Complaint wastes — don’t qualify for
exemption because they’re not “process wastewater from primary magnesium
processing.” 56 Fed. Reg. at 27,307 (emphasis added). Rather, they’re process
wastewaters from the processing of something else. See, e.g., United States’
Combined Summary Judgment Memorandum at 41 (“The wastewaters that are the
subject of the Complaint are wastewaters from the processing of chlorine and
hydrogen chloride gasses [sic], not from the processing of the mineral
magnesium.”). Likewise, EPA took the position that, even if the fifth Complaint
waste — dry anode dust — is the direct result of magnesium processing, it still
isn’t a “wastewater” within the meaning of the 1991 rule, but rather a non-exempt
waste solid. See id. at 38. Thus, to the Agency’s view, none of the five Complaint
wastes fits under the umbrella of wastes exempted from regulation under
Subtitle C.
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In reply, U.S. Magnesium rested heavily on EPA’s 1990 Report to Congress.
In the company’s view, certain language and a diagram in the Report suggested
strongly that EPA had, at least then, interpreted the phrase “[p]rocess wastewater
from primary magnesium processing by the anhydrous process” to mean that all
pollution-control wastes produced at the Rowley facility, including each of the
five Complaint wastes, were exempt from regulation under Subtitle C. In the
company’s view, EPA’s lawsuit now sought to enforce a different, narrower
interpretation of the term “[p]rocess wastewater from primary magnesium
processing by anhydrous process.” And under principles of administrative law,
U.S. Magnesium submitted, this EPA could not do. U.S. Magnesium submitted
that an agency may not interpret its own regulations in a way that conflicts with its
own prior interpretation — at least not without first engaging in notice and
comment, a process EPA admittedly had not undertaken.
Following extensive proceedings over several years that culminated in
briefing at summary judgment, the district court eventually agreed with U.S.
Magnesium. The court seemed to consider EPA’s current interpretation of its
1991 rule — that the five Complaint wastes are not “[p]rocess wastewater from
primary magnesium processing by the anhydrous process” — to be “plausible” as
an initial matter. See D. Ct. Op. at 25 (holding that “each of the parties’
interpretations of the exemption for primary magnesium processing wastewaters,”
the language used in the 1991 final rule, “[is] plausible”). But, the court held, the
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Agency’s current interpretation was different from the interpretation it previously
adopted in its 1990 Report to Congress and elsewhere. And, the court seemed to
believe, EPA could not now change its interpretation of its own 1991 rule without
first providing an opportunity for notice and comment. See Answer Br. at 29 (U.S.
Magnesium characterizing the district court opinion as having “rejected the
government’s current interpretation because it was inconsistent with the original
interpretation”). Given all this, the district court held that partial summary
judgment for U.S. Magnesium on the Complaint waste claims was required as a
matter of law. 5
Of course, a partial summary judgment does not a final judgment make, and
the jurisdiction of the federal circuit courts ordinarily extends only to the final
judgments of the federal district courts. See, e.g., Van Cauwenberghe v. Biard,
5
While the district court did focus on the question when an agency may
amend its interpretation of its own rule, the court also appears to have cast its
legal gaze more broadly. At points, its summary judgment opinion seems to
suggest that the court felt a de novo duty to “decide what constitutes ‘process
wastewater from primary magnesium processing by the anhydrous process.’” D.
Ct. Op. at 21-22. That view is incorrect. When regulatory language is
“ambiguous,” as the district court acknowledged the language of the 1991 rule is,
id. at 22, and an agency has offered a “plausible” interpretation of that language,
as the district court seemed to agree EPA has in this case, id. at 25, the agency’s
interpretation usually merits substantial deference, see Auer v. Robbins, 519 U.S.
452, 461 (1997). The district court, however, did not appear to grapple with this
rule of administrative law. And perhaps as a result, U.S. Magnesium seeks to
defend the district court’s ruling on appeal by focusing on the court’s extended
discussion about asserted differences between EPA’s current interpretation of the
language in its 1991 rule and prior interpretations the Agency had given the same
language in the past.
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486 U.S. 517, 521 (1988) (citing 28 U.S.C. § 1291). As a result, and to
manufacture a final judgment out of the district court’s partial summary judgment
for U.S. Magnesium, the parties stipulated to the dismissal with prejudice of “[a]ll
remaining claims pending in this action.” Final Judgment, U.S. App. Vol. I at 89.
The district court granted the motion, thus making the “summary judgment ruling
. . . a final and appealable judgment.” Id. It is this judgment EPA now appeals to
us. 6
6
As an initial matter, we must determine which claims of the operative
complaint are at issue in this appeal. Essentially, the government’s lawsuit
alleged three categories of violations: (1) the unlawful disposal of the five
Complaint wastes, in violation of the RCRA Subtitle C regulations, (2) other
violations of RCRA unrelated to the treatment of the five Complaint wastes, and
(3) violations of TSCA. It is undisputed that this appeal involves only the first
category of claims and that the second and third categories were dismissed by the
stipulation of the parties. The government has indicated — and none of the
defendants seems to dispute, despite opportunity to do so — that this first
category includes claims 1, 4-7, and 9-15 of the second amended complaint. See
Opposition to Renco Parties’ Motion to be Dismissed from Appeal, at 5. Our own
examination of the operative complaint confirms the government’s view.
With respect to these remaining claims, the “Renco parties,” see supra
note 1, have moved to be dismissed from this appeal on the basis that they are no
longer parties to the dispute. The district court, they submit, only granted partial
summary judgment on claims involving U.S. Magnesium, and the court’s
subsequent dismissal with prejudice of “all remaining claims pending in this
action” included all of the government’s claims against the Renco parties. This
argument is incorrect. The claims at issue in the district court’s partial summary
judgment ruling, and alive before us in this appeal, named the Renco parties as
defendants. Nothing in the district court’s subsequent dismissal with prejudice of
other claims alters this fact. The Renco parties thus remain parties to this appeal
and to EPA’s RCRA claims involving the five Complaint wastes, and we deny
their motion to be dismissed from this appeal.
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II
We review appeals from a district court’s decision to grant summary
judgment de novo, and will affirm only if, viewing the facts in the light most
favorable to the non-movant, we discern no genuine dispute of material fact in
need of resolution by a factfinder and conclude that the movant is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). As it happens, this case
presents a pure question about the legal consequences of undisputed facts. The
precise contours of that question, though, require some explanation. That is where
we begin (Section II.A) before turning to the parties’ arguments about that
question (Section II.B) and finally our disposition of it (Section II.C).
A
In identifying what is in dispute in this case, it is important to start by
delineating what isn’t. While it appears much may have once been disputed in the
district court, see supra notes 5 & 6, the case as it has been briefed to us has
narrowed considerably. Before us, the parties don’t dispute that EPA’s 1991 final
rule is “ambiguous.” See Answer Br. at 34. As U.S. Magnesium argues and EPA
doesn’t contest, the 1991 rule — exempting from regulation under Subtitle C
“process wastewater from primary magnesium processing by the anhydrous
process” — is anything but self-defining. See id. Next, the parties also agree that
the Agency’s current interpretation of that language — an interpretation that
excludes all of the five Complaint wastes — is, as the district court noted, a
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“plausible” one. See id. at 32. Finally, the parties all acknowledge that, usually at
least, an agency’s interpretation of its own ambiguous regulation is entitled to
deference from the courts under Auer v. Robbins, 519 U.S. 452, 461 (1997). See
Answer Br. at 30 (“Nor do the parties dispute that where a regulation is
ambiguous, an agency’s interpretation of its own regulation must be given
substantial deference.”).
With all this agreed, or at least not disputed, we are in the end asked to
decide just one question of law: whether EPA is precluded from pursuing its
current and concededly plausible interpretation of its ambiguous 1991 regulation,
under which the five Complaint wastes do not qualify as “process wastewater from
primary magnesium processing by the anhydrous process,” because the Agency
previously — especially in its 1990 Report to Congress — offered a different and
inconsistent interpretation of that language. As U.S. Magnesium puts it, “[t]he
sole issue presented in this appeal is whether EPA is bound by its original,
contemporaneous interpretation of an ambiguous regulation. Stated otherwise, can
EPA change its original interpretation of the regulation without following the
[notice and comment] procedural requirements of the Administrative Procedure[]
Act (“APA”)”? Answer Br. at 2.
U.S. Magnesium’s brief sometimes hints that EPA’s current interpretation of
the language in its 1991 final rule might be challenged as arbitrary and capricious
or otherwise unlawful in its own right, apart from any purported inconsistency
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with EPA’s own prior interpretation of the rule’s terms. See, e.g., Answer Br. at
55-60; see also Opening Br. at 27-31, 37-42 (defending reasonableness of
Agency’s current view). But the company doesn’t develop any such argument
before us. So, for example, U.S. Magnesium’s appellate brief never cites § 706 of
the APA or any other legal authority necessary to advance an argument of that
sort. Instead, each time the company might be perceived as raising some other
complaint, it recurs to the theme that the real problem is the inconsistency between
the Agency’s current interpretation of the language in its 1991 rule and the prior
interpretation EPA gave that same language, especially in its Report to Congress.
See, e.g., Answer Br. at 2 (telling us this inconsistency is the “sole issue” in this
case); id. at 30 (“The dispute centers on whether any deference must be given to
an agency’s later re-interpretation of a regulation that substantially changes its
original interpretation.”); id. at 33 (“[T]he only remaining issue is whether EPA’s
contemporaneous interpretation of the Bevill Amendment exemptions is
inconsistent with EPA’s current interpretation.”). And all of the case law the
company cites to us concerns only whether and under what circumstances an
agency may amend or abandon its interpretation of a previously adopted
substantive (or legislative) rule. See Answer Br. at 30-33. 7
7
Likewise, U.S. Magnesium doesn’t develop an argument that EPA isn’t
currently offering a plausible interpretation of the language of its 1991 rule but is
instead covertly attempting to apply the criteria announced in its 1989 rule in an
entirely new and different way, thus amending its 1991 substantive rule. And
(continued...)
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B
Having isolated the sole issue presented for our decision, what do the parties
have to say about it?
According to U.S. Magnesium, EPA first interpreted the ambiguous
language of its 1991 rule in its 1990 Report to Congress. Of course, that leads one
to wonder how an agency might in 1990 interpret a rule that didn’t come into
existence until 1991. But to this the company has a ready reply. The 1991
regulation used the same ambiguous language as the 1989 rule: “[p]rocess
wastewater from primary magnesium processing by the anhydrous process.” 56
Fed. Reg. at 27,307. And the 1990 Report to Congress interpreted this language.
7
(...continued)
neither does the company complain that EPA is barred from consulting the criteria
in its 1989 rule to inform its current interpretation of the terms of its 1991 rule.
To be sure, the company hints at the former argument, primarily in its “Summary
of Argument.” See Answer Br. at 26 (“The government now wants to apply a
different reading of the [1989 rule] criteria that conflicts with the way EPA
applied those criteria and then explained its application to Congress.”). But this
assertion never receives the sort of full exposition and joinder of issue necessary
to enable our review. See Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir.
1994) (“[I]ssues adverted to” but “unaccompanied by some effort at developed
argumentation, are deemed waived.” (quotation marks omitted)); see also Bronson
v. Swenson, 500 F.3d 1099, 1105 (10th Cir. 2007) (“[C]ursory statements, without
supporting analysis and case law, fail to constitute the kind of briefing that is
necessary to avoid application of the forfeiture doctrine.”). The company doesn’t,
for example, cite any statutory authority or relevant case law necessary to support
such an argument. To the contrary, and again, U.S. Magnesium directs us to case
law regarding when an agency may alter its interpretation of a substantive rule;
the company repeatedly treats EPA’s current view as an interpretation of the 1991
rule’s ambiguous language; and the company engages the Agency’s use of the
1989 rule’s criteria on its own terms, arguing that they hurt rather than help
EPA’s interpretation of the 1991 rule.
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So, as a practical matter, U.S. Magnesium says, EPA’s Report to Congress
discussing this language from the 1989 rule also amounts to an interpretation of
the 1991 rule. See U.S. Magnesium’s Memorandum in Support of Partial
Summary Judgment at 48. And in the 1990 Report, the company adds, EPA
effectively took the view that all of the Rowley facility’s pollution-control wastes,
including the five Complaint wastes, were exempt from the strictures of Subtitle
C. Having espoused this interpretation of its own regulation, U.S. Magnesium
argues, the Agency must abide it unless and until it adopts a new interpretation
through notice and comment rulemaking. As the company sees it, EPA’s current
enforcement action represents the Agency’s impermissible attempt to short-circuit
that required procedure.
In response, the Agency doesn’t seem to dispute that its 1990 Report
effectively interpreted its later 1991 rule by offering a view about the meaning of
the phrase “process wastewater from primary magnesium processing by the
anhydrous process.” So, for purposes of this appeal, we will assume without
deciding that to be the case. Instead, EPA focuses its fire on the argument that the
initial interpretation it offered in the 1990 Report to Congress was a tentative one,
and an agency, EPA says, need not undertake the rigors of notice and comment to
change a merely tentative interpretation of its own rules.
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C
On this score, we must agree with EPA. Even assuming the rule of
administrative law that U.S. Magnesium urges us to adopt — that an agency may
not interpret a substantive (or legislative) regulation one way and then later adopt
a competing interpretation without undergoing notice and comment rulemaking —
the initial interpretation is only binding if it is definitive. And, as we will explain,
nothing in EPA’s Report to Congress, or in its other communications or actions,
qualifies as that. So, even if we accept the company’s premise that EPA
previously adopted an interpretation of its 1991 final rule, and that EPA now seeks
to modify that interpretation, U.S. Magnesium’s argument still suffers a
fundamental flaw. It is on this flaw that we focus our attention.
1
In support of its claim that an agency may not abandon a prior interpretation
of its own ambiguous regulation without first going through notice and comment,
U.S. Magnesium directs our attention to certain cases from the D.C. Circuit,
beginning with Alaska Professional Hunters Ass’n v. FAA, 177 F.3d 1030 (D.C.
Cir. 1999). In that case, plaintiffs who worked as fishing and hunting guides in
Alaska challenged a Federal Aviation Administration (“FAA”) notice that required
the guides to comply with commercial airline regulations. The notice broke
dramatically with the practice of the FAA’s Alaskan Region, which for decades
had advised guides that they were exempt from restrictions on commercial pilots.
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The court of appeals declared the new notice invalid, holding that the agency
couldn’t “significantly revise[]” its previous “definitive interpretation” of its own
regulations without first engaging in “notice and comment.” Id. at 1034.
In reaching that holding, Alaska Hunters relied almost exclusively on dicta
from an earlier D.C. Circuit case suggesting that “[o]nce an agency gives its
regulation an interpretation, it can only change that interpretation as it would
formally modify the regulation itself: through the process of notice and comment
rulemaking.” Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579,
586 (D.C. Cir. 1997). And to reach that conclusion, Paralyzed Veterans in turn
started with the well-known premise that the APA generally requires an agency to
allow for notice and comment before it issues any new rules. See 5 U.S.C. § 553. 8
Of course, § 553 specifically exempts interpretive rules from its notice and
comment requirements, see 5 U.S.C. § 553(b)(A), but this exemption, Paralyzed
Veterans suggested, doesn’t apply when an agency amends a previous
interpretative rule. This is so, the court said, because a different provision of the
APA defines the term “rule making” to include the “agency process for . . .
amending . . . a rule,” id. § 551(5), so, ipso facto, amending a rule requires notice
and comment. See Paralyzed Veterans, 117 F.3d at 586. The implicit reasoning
appears to be this: if an agency amends its interpretation of a rule, it is effectively
8
Section 553’s notice and comment rulemaking procedures generally
control but are distinct from formal (or on the record) rulemaking procedures
governed by § 556.
- 20 -
“amending . . . [the] rule” itself, 5 U.S.C. § 551(5), and the APA by its own terms
defines this amendment as a kind of rulemaking, something the agency may not
accomplish without notice and comment procedures. “To allow an agency to make
a fundamental change in its interpretation of a substantive regulation without
notice and comment,” the court explained, would “undermine” the notice and
comment provisions of the APA. Paralyzed Veterans, 117 F.3d at 586.
Paralyzed Veterans and Alaska Hunters have generated considerable debate.
As the government points out, the issue whether an agency may alter its
interpretation of its own regulation without notice and comment is the subject of a
circuit split, with the Third, Fifth, and Sixth Circuits apparently adopting the D.C.
Circuit’s view and the First and Ninth Circuits seemingly taking the contrary
- 21 -
position. 9 Our circuit, as far as we can tell, hasn’t yet had an opportunity to weigh
in. 10
Commentators, however, have joined the fray. As a matter of statutory
construction, some critics suggest, the text of the APA can’t bear the weight
foisted upon it by Alaska Hunters. The D.C. Circuit relied primarily on APA
§ 551(5) for its holding, but that section, these scholars observe, merely offers a
9
Compare SBC Inc. v. FCC, 414 F.3d 486, 498 (3d Cir. 2005) (“[I]f an
agency’s present interpretation of a regulation is a fundamental modification of a
previous interpretation, the modification can only be made in accordance with the
notice and comment requirements of the APA.”), Shell Offshore Inc. v. Babbitt,
238 F.3d 622, 629 (5th Cir. 2001) (“[T]he APA requires an agency to provide an
opportunity for notice and comment before substantially altering a well
established regulatory interpretation.”), and Dismas Charities, Inc. v. U.S. Dep’t
of Justice, 401 F.3d 666, 682 (6th Cir. 2005) (“It is true that once an agency gives
a regulation an interpretation, notice and comment will often be required before
the interpretation of that regulation can be changed.” (emphasis omitted)), with
Warder v. Shalala, 149 F.3d 73, 81-82 (1st Cir. 1998), and Erringer v. Thompson,
371 F.3d 625, 632 (9th Cir. 2004) (“[N]o notice and comment rulemaking is
required to amend a previous interpretive rule.” (emphasis omitted)). Notably,
neither Warder nor Erringer explicitly analyzes, or even discusses, Paralyzed
Veterans or Alaska Professional Hunters.
10
U.S. Magnesium quotes Mission Group Kansas, Inc. v. Riley, 146 F.3d
775, 782 (10th Cir. 1998), in an effort to show that this court has adopted the
Alaska Hunters rule. See Answer Br. at 31. But the quoted material merely
restates the hornbook maxim that substantive (or legislative) rules stake out new
territory and thus require notice and comment, while interpretive rules merely
explain existing legislative rules and thus do not. See 5 U.S.C. § 553; see also
Richard J. Pierce, Jr., 1 Administrative Law Treatise § 6.4 (4th ed. 2002). We
have suggested, albeit in a general way, that agencies must provide some notice
when they change the law, see Bartlett Mem’l Med. Ctr. v. Thompson, 347 F.3d
828, 846-47 (10th Cir. 2003) (Briscoe, J., concurring and dissenting) (citing
cases), but that doesn’t seem to us to answer the question that is the subject of the
circuit split.
- 22 -
definition of rulemaking. For a prescription of how to conduct rulemaking, we
must look instead at § 553, which makes perfectly clear that the notice and
comment procedures required for substantive (or legislative) rules just don’t apply
to “interpretative rules.” 5 U.S.C. § 553(b)(A) (“Except when notice or hearing is
required by statute, this subsection [requiring notice and comment] does not apply
. . . to interpretative rules, general statements of policy, or rules of agency
organization, procedure, or practice.”). And so it doesn’t matter whether an
interpretive rule is the first or second or seventeenth in a series: on this view,
none has to undergo notice and comment before taking effect. The Alaska Hunters
regime misses this point, the argument goes, and in so doing flouts the APA’s
clear distinction between interpretive and substantive rules. See, e.g, Richard J.
Pierce, Jr., Distinguishing Legislative Rules from Interpretive Rules, 52 Admin. L.
Rev. 547, 567 (2000); Jon Connolly, Note, Alaska Hunters and the D.C. Circuit: A
Defense of Flexible Interpretive Rulemaking, 101 Colum. L. Rev. 155, 172-73
(2001). 11
11
Some critics have also argued that Alaska Hunters defies the dictates of
the Supreme Court. So, for example, they suggest that, by imposing more
administrative procedure than the APA requires, Alaska Hunters might contravene
the Court’s admonitions against that practice in Vermont Yankee. See William
Funk, A Primer on Legislative Rules, 53 Admin. L. Rev. 1321, 1329-30 (2001);
see also Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435
U.S. 519 (1978). And Alaska Hunters sits in tension, they say, with the Court’s
view that “consistency with earlier and later pronouncements” is just one factor
that bears upon judicial review of an agency’s interpretation, rather than an
outcome-determinative test. See Pierce, supra, at 572-73 (quoting Skidmore v.
(continued...)
- 23 -
Other scholars take a different view. One possible way to defend the Alaska
Hunters doctrine, they suggest, may be that an interpretation of a substantive (or
legislative) regulation essentially becomes part of that regulation itself. On this
logic, a superseding interpretation would necessarily amend the substantive
regulation and thus require notice and comment. See Richard W. Murphy, Hunters
for Administrative Common Law, 58 Admin. L. Rev. 917, 923 (2006). 12
2
Though U.S. Magnesium spends considerable energy encouraging us to join
the circuits that have adopted Alaska Hunters, and invites us to conclude that those
circuits have the better view of administrative law, we have no need to wade into
such deep waters to decide the appeal before us. This is because, even if we
assume without deciding that Alaska Hunters’s reading of the APA is the correct
11
(...continued)
Swift & Co., 323 U.S. 134, 140 (1944)); see also id. at 572 n.165 (citing Supreme
Court cases).
12
The academic debate also proceeds beyond the legal realm we inhabit to
the policy realm usually reserved for others, contending variously that Alaska
Hunters does and does not promote sound policy. Some worry that its rule
diminishes agency flexibility, discourages informal agency guidance, and deters
agencies from interpreting their regulations. See Connolly, supra, at 169-72; see
also Peter L. Strauss, Publication Rules in the Rulemaking Spectrum: Assuring
Proper Respect for an Essential Element, 53 Admin. L. Rev. 803, 847 (2001).
Others reply that agency interpretations encourage and create settled public
expectations that equity suggests shouldn’t be lightly disturbed. See, e.g., Ryan
DeMotte, Note, Interpretive Rulemaking and the Alaska Hunters Doctrine: A
Necessary Limitation on Agency Discretion, 66 U. Pitt. L. Rev. 357, 370-76
(2004).
- 24 -
one (as U.S. Magnesium argues), the company still cannot prevail. By its terms,
the Alaska Hunters doctrine applies only to definitive regulatory interpretations;
even under Alaska Hunters, an agency remains free to disavow and amend a
tentative interpretation of one of its rules without notice and comment. And the
only prior interpretation U.S. Magnesium has identified in this case can fairly be
characterized as no more than that — tentative.
Under the Alaska Hunters line of cases on which U.S. Magnesium relies, an
agency commits itself to a particular interpretation of its own regulation only when
it adopts that interpretation definitively, and “conditional or qualified statements,
including statements that something ‘may be’ permitted, do not establish definitive
and authoritative interpretations.” MetWest Inc. v. Sec’y of Labor, 560 F.3d 506,
509-10 (D.C. Cir. 2009); see also Devon Energy Corp. v. Kempthorne, 551 F.3d
1030, 1041 (D.C. Cir. 2008) (holding that “guidance documents [that] were far
from conclusive in what they said” were insufficient to bind agency’s future
interpretation of regulation); Darrell Andrews Trucking, Inc. v. Fed. Motor
Carrier Safety Admin., 296 F.3d 1120, 1126 (D.C. Cir. 2002) (holding that
agency’s “ambiguous” regulatory guidance did not “mark a definitive
interpretation” and thus did not constrain its subsequent discretion); Ass’n of Am.
R.R. v. Dep’t of Transp., 198 F.3d 944, 948-50 (D.C. Cir. 1999) (holding agency
“never adopted a definitive interpretation of [the regulation] that it could change
only through notice and comment rulemaking” because “none of th[e] documents
- 25 -
[cited by the regulated party] even comes close to the express, direct, and uniform
interpretation” necessary to constrain agency’s interpretive discretion); cf. Thomas
Jefferson Univ. v. Shalala, 512 U.S. 504, 516 (1994) (rejecting university’s
argument that agency had adopted inconsistent interpretive positions because
agency’s initial “intermediary letter did not purport to be a comprehensive review
of all conditions” that the ambiguous regulation might impose). Even under the
Alaska Hunters doctrine, then, before an agency adopts a definitive interpretation
of its own rule it remains free to hear new arguments, make adjustments, and
change directions, all without having to undergo notice and comment.
The prior interpretation on which U.S. Magnesium most prominently hangs
its hat is the Report to Congress. The company argues strenuously and at length
that EPA’s current interpretation of its ambiguous 1991 final rule is inconsistent
with the interpretation the Agency previously offered in its 1990 Report. And in
that Report, the company says, “EPA interpreted its regulation . . . as covering the
aggregated wastestreams from all of the [Rowley facility’s] pollution-control
operations.” Answer Br. at 24 (emphasis added).
But even assuming (again without deciding) that the Report did suggest that
all of the Rowley facility’s pollution-control wastes qualify as “process
wastewater from primary magnesium processing by the anhydrous process,” and so
are exempt from Subtitle C, U.S. Magnesium offers us no reason to think that this
constituted anything more than a tentative view. To start, the Report itself
- 26 -
repeatedly describes its conclusions as “tentative.” 13 And when it issued the
Report, EPA expressly solicited public comments, which it said it planned to use
“in conjunction with the Report to Congress to make the final regulatory
determination[s]” that it would enshrine in what was, ultimately, the final 1991
regulation. See 55 Fed. Reg. at 32,135. More process was thus expressly
contemplated and actually undertaken. It may be that an agency can offer a
definitive interpretation of its own regulations in a variety of forms, perhaps even
in a congressional report. And no doubt a report to Congress is a solemn thing.
But U.S. Magnesium hasn’t given us any reason to conclude that the Report at
issue in this case was anything other than tentative. 14
13
See Report to Congress, U.S. App. Vol. I at 184-85 (listing “[p]rocess
wastewater from primary magnesium processing by the anhydrous process”
among “[w]astes EPA [m]ight [t]entatively [r]ecommend to [r]emain [u]nder
RCRA Subtitle D” (emphasis added)); id. at 201 (“tentatively concluded”); id. at
202 (same). EPA’s Federal Register notice of the publication of the Report
includes the same description of its conclusions. See 55 Fed. Reg. at 32,135
(“The report also presents two alternative decision-making approaches and
tentative findings under each approach . . . .” (emphasis added)); id. at 32,137
(“[T]he Agency developed two approaches for tentatively determining whether
regulation under RCRA subtitle C is warranted . . . .” (emphasis added)); see also
id. (repeatedly describing what EPA “might find” in the future).
14
To be sure, an agency cannot sidestep the rule of Alaska Hunters merely
by tacking the word “tentative” onto its every proclamation. It’s not enough for
an agency just to say that its policy is tentative; to avoid the necessity of notice
and comment, the policy must actually be tentative. Cf. Columbia Broad. Sys. v.
United States, 316 U.S. 407, 416 (1942) (“The particular label placed upon [the
order] by the [agency] is not necessarily conclusive, for it is the substance of
what the [agency] has purported to do and has done which is decisive.”). Trying
to decide whether an interpretation is, in substance, definitive or tentative may in
(continued...)
- 27 -
To this, U.S. Magnesium replies that there’s more than just the Report to
Congress to suggest that EPA previously adopted an interpretation of its 1991 rule
that is at odds with its current interpretation. The company also points to certain
of EPA’s actions and communications. By way of example, U.S. Magnesium
highlights the fact that the Agency, in June 1989, tested an aggregated
wastestream at the Rowley facility, rather than individual wastes from the
facility’s different pollution-control devices. This action, the company says,
confirms that in its 1990 Report to Congress EPA intended to treat all of the
facility’s pollution-control wastes as a unified whole for purposes of any
exemption from Subtitle C, rather than distinguish between different wastes as it
seeks to do now. See Answer Br. at 37-39.
This allegation has sparked an extended dispute between the parties about
what exactly transpired during the site visit. EPA’s site visit director, Robert Hall,
has offered a declaration explaining that his sampling team wanted to test
“numerous wastestreams discharging into ditches from the ends of unmarked
14
(...continued)
some cases prove challenging, much like the challenge that differentiating
between substantive and interpretive rules has posed to courts for decades. See
Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 946 (D.C. Cir. 1987) (per curiam)
(describing distinction between substantive and interpretive rules “as ‘tenuous,’
‘fuzzy,’ ‘blurred,’ and, perhaps most picturesquely, ‘enshrouded in considerable
smog.’” (citations omitted)). See generally John F. Manning, Nonlegislative
Rules, 72 Geo. Wash. L. Rev. 893 (2004). In this case, however, U.S.
Magnesium offers no persuasive reason why EPA’s Report to Congress expresses,
in its substance as well as semantics, anything other than a “tentative”
interpretation, under any reasonable understanding of the term.
- 28 -
pipes,” but that their access was “impeded” by steep embankments and piles of
refuse and debris. Declaration of Robert Hall, U.S. App. Vol. III at 581. U.S.
Magnesium, for its part, challenges Mr. Hall’s account, arguing EPA could have
safely tested individual wastestreams if it had really wished to do so.
But all this tussling over the facts overlooks the salient legal point. Even if
the 1989 site visit evinced EPA’s contemporaneous intention to aggregate all of
the Rowley facility’s pollution-control wastes for purposes of an exemption from
Subtitle C, it still doesn’t tell us whether EPA’s commitment to that view of its
regulations in its 1990 Report was definitive. We’ve operated in this opinion on
the assumption that the 1990 Report itself demonstrated an intent to treat all of the
Rowley facility’s pollution-control wastes as a unified whole for purposes of the
Subtitle C analysis; at best, the 1989 site visit seems to tell us no more than what
we’ve already assumed. However viewed, the site visit simply offers no insight
into whether the 1990 Report was itself a definitive or tentative interpretation.15
Beyond the site visit, U.S. Magnesium directs us to certain correspondence
as evidence of EPA’s alleged prior inconsistent interpretation. And the company
15
To avoid this result, one might seek to argue that the site visit and the
testing of this-rather-than-that waste stream itself constituted a definitive
regulatory interpretation, not just further evidence about the meaning of EPA’s
Report to Congress. But U.S. Magnesium doesn’t pursue this line of reasoning.
See Answer Br. at 37-39 (arguing that EPA’s conduct amounts to evidence of the
Agency’s future intended interpretation in the Report). And we would in any
event be hard pressed to credit it, given that, among other things, the June 1989
site visit came almost three months before the publication of EPA’s final rule on
the Subtitle C exemption criteria in September 1989.
- 29 -
also points to the fact that, under EPA’s current view disfavoring the aggregation
of individual wastestreams, none of the waste from the Rowley facility would meet
the high volume criteria set forth in the final 1989 rule for exemption from
regulation under Subtitle C. See Answer Br. at 51-55; see also 54 Fed. Reg. at
36,629-31. These arguments once again lead the parties into thickly factual
disputes. EPA responds, for example, that U.S. Magnesium has misread the
parties’ correspondence. It argues that any previous Agency error concerning the
volume of the various pollution-control wastes was the result of bad information
provided by the facility’s then-owner. And it adds that any inaccuracy in its
previous measurement of the wastes produced at Rowley doesn’t make a difference
anyway because it isn’t seeking to hold U.S. Magnesium to Subtitle C’s terms for
any wastes other than the five Complaint wastes. But once again, none of this
matters to the resolution of this appeal. What does matter is that none of these
arguments — no more than those analyzed above — establishes that EPA in its
Report to Congress, or elsewhere, adopted a definitive, rather than a tentative,
interpretation that the five Complaint wastes were “process wastewater from
primary magnesium processing by the anhydrous method.” 16
16
One might reply to all this by suggesting that courts shouldn’t recognize
a distinction between an agency’s tentative and definitive interpretations of its
own regulations. After all, under Alaska Hunters, adopting a tentative
interpretation seems like the best of all possible worlds for the agency: the
agency can tell regulated parties what it wants them to do, and yet it’s still free to
embrace some new (assuredly tentative) interpretation whenever it wants. What’s
(continued...)
- 30 -
3
Having held that EPA was in this case free under Alaska Hunters doctrine to
change its interpretation of its 1991 rule without undertaking notice and comment,
one might worry that administrative law has simply abandoned regulated parties to
the whims of an agency’s arbitrary interpretive reversals. What about the
reasonable and settled expectations of the regulated public? As it happens,
however, there is no reason for undue alarm; at least two other layers of protection
exist, even without the added aegis of Alaska Hunters.
First, the APA itself empowers courts to review “agency action, findings,
and conclusions” if they are “arbitrary and capricious, an abuse of direction, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This requirement
means, among other things, that an agency “must cogently explain why it has
exercised its discretion in a given manner.” Motor Vehicle Mfrs. Ass’n of the U.S.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48 (1983); see also Fabi Constr.
(...continued)
to motivate the agency, then, ever to make an interpretation definitive if it can
just add “tentative” to its all proclamations as a magic word, a sort of abracadabra
of administrative decisionmaking that frees it to change direction whenever it
likes? Given these concerns, one might suggest that, rather than going too far,
Alaska Hunters doesn’t go far enough: not only should the revision of definitive
interpretations require notice and comment, but the reversal of tentative
interpretations should, too. Whatever the merits of this hypothesis, though, it is
not one that U.S. Magnesium has asked us to consider. As we’ve explained, U.S.
Magnesium only urges us to follow Alaska Hunters as it currently stands, not to
extend or adorn its teachings in novel ways, and the company has offered no
reason why that doctrine required EPA to follow notice and comment in this case.
- 31 -
Co. v. Sec’y of Labor, 508 F.3d 1077, 1089 (D.C. Cir. 2007). It is hard to see how
this obligation could be any less salient when an agency seeks to abandon a prior
interpretation in favor of a new one. See Manning, supra, at 936.
Second, even if Congress repealed the APA tomorrow, the Due Process
Clauses of the Fifth and Fourteenth Amendments would still prohibit the
imposition of penalties without fair notice. See U.S. Const. amend. V; id. amend.
XIV, § 1. Due process, after all, requires at the least that “laws give the person of
ordinary intelligence a reasonable opportunity to know what is prohibited.”
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). This principle applies to
civil as well as criminal penalties, albeit in slightly different form. See Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-99 (1982).
And it pertains when an agency advances a novel interpretation of its own
regulation in the course of a civil enforcement action. See Walker Stone Co. v.
Sec’y of Labor, 156 F.3d 1076, 1083-84 (10th Cir. 1998) (“In order to satisfy
constitutional due process requirements, regulations must be sufficiently specific
to give regulated parties adequate notice of the conduct they require or prohibit.”
(quoting Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 362 (D.C.
Cir. 1997))); see also General Elec. Co. v. EPA, 53 F.3d 1324, 1328-34 (D.C. Cir.
1995); cf. Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170-71 (2007)
(“[I]nterpretive changes [to regulations must] create no unfair surprise.”). If an
agency could punish a regulated party for following the agency’s own
- 32 -
interpretation of its own ambiguous regulations, after all, “the practice of
administrative law would come to resemble ‘Russian Roulette.’” Satellite Broad.
Co. v. FCC, 824 F.2d 1, 4 (D.C. Cir. 1987).
One might wonder about the potential application of these doctrines to U.S.
Magnesium’s cause. Interesting as these questions may be, though, they are not
ones that we have to or may answer in this case. At no point in the proceedings
before this court has the company raised any argument or sought decision of any
issue arising under either § 706(2)(A) of the APA or the Due Process Clause.
Accordingly, these arguments are waived. See Rollins Envtl. Servs. (NJ) Inc. v.
EPA, 937 F.2d 649, 652 n.2 (D.C. Cir. 1991) (finding waiver of due process notice
argument in agency enforcement action involving novel interpretation of
ambiguous regulation); see also Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1172
n.17 (10th Cir. 2007). 17
* * *
For purposes of summary, we hold that EPA hasn’t previously adopted a
definitive interpretation of its 1991 rule. Even under the case law U.S.
Magnesium asks us to follow, the Agency is at liberty to adopt without notice and
17
At oral argument, U.S. Magnesium did characterize its argument as one
of “fundamental fairness” — a phrase evocative of the Constitution’s due process
guarantee. But that argument appears nowhere in the company’s brief. We
generally will not pass upon issues raised for the first time at oral argument on
appeal, see Fed. Ins. Co. v. Tri-State Ins. Co., 157 F.3d 800, 805 (10th Cir. 1998),
and we see no reason to deviate from that practice here.
- 33 -
comment a reasonable interpretation of that ambiguous regulation. At least before
us, U.S. Magnesium does not dispute that EPA has done so with this litigation.
For this reason, we vacate the entry of summary judgment in U.S. Magnesium’s
favor and remand this matter to the district court. We do not prejudge what, if
any, further proceedings may be appropriate in that court in light of and consistent
with this opinion.
- 34 -