Horsehead Resource Development Co. v. Environmental Protection Agency ( 1997 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 9, 1997 Decided December 12, 1997
No. 95-1286
Horsehead Resource Development Company, Inc.,
Petitioner
v.
Environmental Protection Agency and
Carol M. Browner, Administrator,
Respondents
Environmental Technology Council, Inc., et al.,
Intervenors
On Petition for Review of an Order of the
Environmental Protection Agency
Paul E. Gutermann argued the cause for the petitioner.
John N. Moore was on brief.
Robert I. Dodge, Attorney, United States Department of
Justice, argued the cause for the respondents. Lois J. Schif-
fer, Assistant Attorney General, United States Department of
Justice, and Paul M. Bangser, Counsel, Environmental Pro-
tection Agency, were on brief.
Karl S. Bourdeau argued the cause for the intervenors.
William M. Guerry, Jr., Chet M. Thompson and David R.
Case were on brief.
Before: Wald, Henderson and Garland, Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: The petitioner,
Horsehead Resource Development Company (Horsehead),
asks this Court to vacate a de-listing rule of the Environmen-
tal Protection Agency (EPA). The rule excludes electric arc
furnace dust treated by the Super Detoxtm process from the
list of "hazardous wastes" regulated by the Resource Conser-
vation and Recovery Act, 42 U.S.C. ss 6901 et seq., (RCRA).
Horsehead contends that EPA promulgated the de-listing
rule in violation of the Administrative Procedure Act, 5 U.S.C.
ss 551 et seq., (APA), and the National Environmental Policy
Act, 42 U.S.C. ss 4321 et seq., (NEPA). Further, it claims
that the de-listing rule violates RCRA and the Pollution
Prevention Act, 42 U.S.C. ss 13101 et seq. The intervenors
and respondent EPA dispute Horsehead's claims and, in
addition, argue that Horsehead's petition should be dismissed
for lack of jurisdiction, either because the petition was filed
prematurely or because Horsehead lacks standing.
We hold that Horsehead's petition was filed prematurely
and we are therefore without jurisdiction to consider it.
Accordingly we dismiss the petition and do not reach the
other arguments advanced by the parties.
I. BACKGROUND
Electric arc furnace dust (Dust) is a byproduct of the
primary production of steel. According to the petitioner,
some 550,000 tons of Dust are generated annually by domes-
tic steel mills, making it "the second largest inorganic hazard-
ous waste stream in the United States." Pet'r Br. at 2. Dust
is listed as a RCRA hazardous waste because it contains
cadmium, hexavalent chromium, lead and other potentially
toxic compounds. See 40 C.F.R. s 261.32 (1997); Steel Mfrs.
Ass'n v. EPA, 27 F.3d 642, 645 (D.C. Cir. 1994) (discussing
Dust treatment standards).
In August 1992, Conversion Systems, Inc. (CSI), an inter-
venor here, petitioned EPA to de-list Dust treated by its
Super Detoxtm process. On November 2, 1993, EPA publish-
ed a Notice of Proposed Rulemaking, indicating its intent to
grant CSI's de-listing petition. See Hazardous Waste Man-
agement System; Identification and Listing of Hazardous
Waste; Proposed Exclusion, 58 Fed. Reg. 58,521 (1993) (to be
codified at 40 C.F.R. pt. 261) (proposed Nov. 2, 1993). Horse-
head subsequently submitted comments in opposition to the
proposed de-listing rule, raising both environmental and eco-
nomic issues.1 JA 209-303, 317-77.
Nevertheless, over Horsehead's objections, EPA decided to
make final the proposed de-listing rule without significant
modification. Accordingly, on May 30, 1995 the EPA Admin-
istrator signed the final de-listing rule and EPA distributed
copies of it to Horsehead and other interested parties.2
Horsehead filed the instant petition for review on June 1,
1995. EPA filed the de-listing rule with the Office of the
Federal Register on June 12, 1995 and the rule was published
in the Federal Register and became effective the next day,
June 13, 1995. See Hazardous Waste Management System;
__________
1 Notwithstanding its representations to the contrary, Horse-
head's interest in the de-listing rule appears to be largely economic.
It currently controls a dominant share of the Dust recycling and
disposal business and asserts that the de-listing rule "threatens" it
with "grievous economic harm" because CSI's Super Detoxtm pro-
cess is a substantially cheaper treatment technology than the
process Horsehead uses. Pet'r Br. at 37-38; JA 354.
2 The record does not indicate the date on which copies of the
signed rule were distributed to interested parties nor does it
indicate when Horsehead received a copy of the rule or first learned
that it had been signed.
Identification and Listing of Hazardous Waste; Final Exclu-
sion, 60 Fed. Reg. 31,107 (1995) (to be codified at 40 C.F.R.
pt. 261).
II. DISCUSSION
Our jurisdiction to hear Horsehead's petition springs from
42 U.S.C. s 6976(a), which in relevant part provides:
Any judicial review of final regulations promulgated pur-
suant to this chapter and the Administrator's denial of
any petition for the promulgation, amendment, or repeal
of any regulation under this chapter shall be in accor-
dance with sections 701 through 706 of Title 5, except
that--
(1) a petition for review of action of the Administrator
in promulgating any regulation, or requirement under
this chapter or denying any petition for the promul-
gation, 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, and
such petition shall be filed within ninety days from
the date of such promulgation or denial, or after such
date if such petition for review is based solely on
grounds arising after such ninetieth day; action of the
Administrator with respect to which review could have
been obtained under this subsection shall not be sub-
ject to judicial review in civil or criminal proceedings
for enforcement;....
42 U.S.C. s 6976(a)(1) (emphasis added); cf. Waste Manage-
ment, Inc. v. EPA, 945 F.2d 419, 421 (D.C. Cir. 1991) ("In
order to obtain judicial review of a regulation promulgated
under RCRA, a petition for review must be filed in this court
within ninety days of the promulgation of the regulation.");
United Techs. Corp. v. EPA, 821 F.2d 714, 720-21 (D.C. Cir.
1987) ("Our jurisdiction in these cases stems from section
7006(a)(1) of [RCRA], 42 U.S.C. s 6976(a)(1) (1982).").
Horsehead contends that section 6976(a)(1) establishes only
a filing deadline and thus a petition for review may be filed
any time after EPA takes final action on (i.e., signs) a de-
listing rule. Alternatively, if section 6976(a)(1) sets forth a
filing window, Horsehead argues that the filing window opens
either on the date the Administrator signs the de-listing rule
or on the date EPA distributes copies of it. By any of these
measures, Horsehead claims, its petition cannot be deemed
premature.
EPA and the intervenors contend that section 6976(a)(1)
establishes a filing window, not a filing deadline, that opens
on the date of "promulgation." They claim that "promul-
gation" as used in section 6976(a)(1) means the date the final
rule is published in the Federal Register and therefore Horse-
head filed its petition twelve days prematurely. The parties
therefore pose two questions: (1) does section 6976(a)(1)
establish a filing deadline or a filing window; and (2) if
section 6976(a)(1) establishes a filing window, when does that
window open?
A. Section 6976(a)(1) Creates Filing Window
With respect to the first question, we think the holding in
Western Union Telegraph Co. v. Federal Communications
Commission controls. 773 F.2d 375 (D.C. Cir. 1985). West-
ern Union construed an FCC jurisdictional provision that
requires a petition for review of a final FCC order to be filed
"within 60 days after 'entry' of the order." 773 F.2d at 377-
78 (emphasis added). We held that the word "within" estab-
lishes a filing window, not a filing deadline: "If the intent
were to establish a filing deadline rather than a filing window,
[the provision in question] would more naturally have been
phrased 'no later than 60 days after ... entry' rather than
'within 60 days after ... entry.' " Id. at 377 (emphasis
added); see also Waterway Communications Sys., Inc. v.
FCC, 851 F.2d 401, 405-06 (D.C. Cir. 1988) (applying Western
Union to conclude jurisdictional statute, requiring filing "with
the court within thirty days from the date upon which public
notice is given," established filing window). Because section
6976(a)(1) uses the same "within" phrase, Western Union
compels the conclusion that section 6976(a)(1) establishes a
filing window, not a filing deadline.
B. Opening of Filing Window Created
by Section 6976(a)(1)
We must next decide when the filing window opens, that is,
what "promulgation" as used in section 6976(a)(1) means.
The holding in National Grain & Feed Ass'n, Inc. v. OSHA,
845 F.2d 345 (D.C. Cir. 1988), is instructive. There this court
stated: "Based on the plain meaning of [the jurisdictional
statute], the ordinary usage of the term promulgate, and the
lack of any specific agency regulation defining the date of
promulgation, we conclude that an OSHA standard is promul-
gated on the date that it is published in the Federal Regis-
ter." Id. at 346 (emphasis added).3 We read National Grain
to establish a default rule: If the agency does not define the
term by regulation and if the statute supports (or at least
does not foreclose) the interpretation, "promulgation" is ac-
corded its "ordinary meaning"--i.e., publication in the Feder-
al Register. See also United Techs. Corp. v. OSHA, 836 F.2d
52, 54 (2d Cir. 1987) ("As the term is generally used, 'promul-
gate' means 'to make known by open declaration' or 'to make
... public the terms' of a rule of law. See Webster's Third
New Int'l Dictionary 1816 (1981). We conclude that the
amendments in this case were promulgated when they were
published in the Federal Register ...."), cited with approval
by National Grain, 845 F.2d at 346 ("We agree [with United
Technologies' holding], at least in the absence of a valid
OSHA regulation fixing some other [window-opening] date.");
cf. Western Union, 773 F.2d at 377-78 (dismissing petition as
premature because filed six days before challenged OSHA
regulation published in Federal Register); Waterway Com-
munications, 851 F.2d at 405-06 (dismissing petition as pre-
__________
3 In so concluding, the court relied (at least in part) on the fact
that OSHA had defined "issuance" of the regulation--an action the
statute made antecedent to promulgation--as the date on which a
copy of the regulation is filed with the Office of the Federal
Register. We are confronted with an analogous circumstance here
because EPA's own de-listing regulation defines antecedent ac-
tion--i.e., "final action" on a de-listing petition--as the date of
Federal Register publication. See infra discussion, p. 11.
mature because filed eighteen days before FCC notified
public of licensure).
As was the case with OSHA in National Grain, EPA has
not defined "promulgation" by regulation. Moreover, section
6976(a)(1) itself does not manifest that the word is to be given
a special meaning. The "ordinary usage" of the verb "pro-
mulgate" and the noun "promulgation" has not changed since
National Grain was decided. Accordingly, we believe Na-
tional Grain's default rule applies and therefore conclude
that "promulgation" as used in section 6976(a)(1) means Fed-
eral Register publication.
Horsehead nonetheless contends that we should find that
the de-listing rule was "promulgated" on the day it was
signed because EPA has consistently interpreted its obli-
gation to "promulgate" a rule by a date certain--whether
imposed by statute or by court order--to be met by the
Administrator's signing of the final rule. Horsehead argues
that EPA should not be permitted to apply a different
interpretation to RCRA's judicial review provision. While we
are troubled by EPA's stance that it can construe "promul-
gation" to mean one thing under section 6976(a)(1) but anoth-
er to determine compliance with a statutory or court-ordered
"promulgation" deadline, we cannot agree that merely signing
the final rule is sufficient to open the section 6976(a)(1) filing
window.
As the Supreme Court observed almost five decades ago,
an agency must give some notice of "the substance" of its
final action before that action can be deemed ripe for judicial
review:
Of course, the [Federal Power] Commission has consider-
able administrative discretion to decide when an order
may fairly be deemed to have been "issued." Section 16
of the [Natural Gas] Act provides that "Orders of the
Commission shall be effective on the date and in the
manner which the Commission shall prescribe." But
surely [an order] cannot be said to have been issued for
purposes of defining rights and the seeking of reconsid-
eration by an aggrieved person if its substance is merely
in the bosom of the Commission. Knowledge of the
substance must to some extent be made manifest.
Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 676
(1950); accord Industrial Union Dep't, AFL-CIO v. Bing-
ham, 570 F.2d 965, 969 (D.C. Cir. 1977) (Leventhal, J.,
concurring) (observing that signing OSHA regulation, without
communication of its substance to interested members of
public, would not suffice to open filing window).
Moreover, we think Horsehead's interpretation is inconsis-
tent with the Congress's unambiguously expressed intent that
petitions be filed "within ninety days from the date of ...
promulgation." If the section 6976(a)(1) filing window opens
on the date of signature, it must close ninety days after
signature.4 Yet according to Horsehead's interpretation, if
EPA had not distributed copies of the signed de-listing rule in
advance of its publication, and if interested parties had not
otherwise received actual notice of the rule, the signature-to-
publication delay here--which is probably not unusual--
__________
4 Horsehead suggests that the section 6976(a)(1) filing window
opens on the signing date and closes ninety days after the date of
Federal Register publication. If we agreed with Horsehead, we
would extend the section 6976(a)(1) filing window here from ninety
to 104 days. We think that any such extension is plainly proscribed
by the Congress's express intent to establish a ninety-day filing
period, by Supreme Court precedent and by Fed. R. App. P. 26(b).
See United States v. Locke, 471 U.S. 84, 93-94 (1985) ("[W]ith
respect to filing deadlines a literal reading of Congress' words is
generally the only proper reading of those words.... Faced with
the inherent arbitrariness of filing deadlines, we must, at least in a
civil case, apply by its terms the date fixed by the statute."); but cf.
id. at 94 n.10 (dicta regarding possible exceptions); see also Fed. R.
App. P. 26(b) ("Nor may the court enlarge the time prescribed by
law for filing a petition to enjoin, set aside, suspend, modify, enforce
or otherwise review, or a notice of appeal from, an order of an
administrative agency, board, commission or officer of the United
States, except as specifically authorized by law.").
Nor does Horsehead's invocation of 44 U.S.C. s 1507 alter our
conclusion. That provision merely states that a party without
actual notice of a regulation cannot be bound by the regulation until
it is filed with the Office of the Federal Register and a copy made
available for public inspection.
would have effectively shortened the filing period by two
weeks.
Horsehead next argues that even if the de-listing rule was
not promulgated when signed, EPA's pre-publication distribu-
tion of it should be deemed to constitute "promulgation"
under this court's holdings in Saturn Airways, Inc. v. Civil
Aeronautics Board, 476 F.2d 907 (D.C. Cir. 1973), and Indus-
trial Union, supra. We find, however, that neither case
supports Horsehead's interpretation of section 6976(a)(1)
"promulgation" as synonymous with pre-publication distribu-
tion of a signed rule.
First, in Saturn Airways, this court was asked to deter-
mine whether petitions seeking review of a final order of the
Civil Aeronautics Board were filed prematurely. The only
question was whether filing of the review petitions "preceded
issuance of an order by the Board." 476 F.2d at 909 (1973)
(emphasis added). In the absence of statutory language
declaring when an order became reviewable, Saturn Airways
held that a petition for review was not premature if filed after
"the Board had [both] taken what it deemed to be official
action" and issued a press release that communicated "the
substance of that action ... to the public." Id. (citing Skelly Oil Co., 339 U.S. at 676). While Saturn Airways may be
instructive in determining when a matter is ripe for review in
the absence of statutory language so providing, we think it
largely beside the point here where we must construe the
express language provided by the Congress. Cf. Western
Union, 773 F.2d at 377 ("[W]e deal with statutory texts
rather than disembodied purposes....").
Second, in Industrial Union, this court was asked to
construe a statute establishing the requirements for judicial
review of a final OSHA order or regulation. The statute, 29
U.S.C. s 655(f), provided that "[a]ny person who may be
adversely affected by a standard issued under this section
may at any time prior to the sixtieth day after such standard
is promulgated file a petition challenging the validity of such
standard." Industrial Union, 570 F.2d at 967 n.2 (emphasis
added). A sharply-splintered court concluded that the peti-
tion--filed after the OSHA standard was signed and was
distributed and explained to representatives of some of the
parties--was not prematurely filed under section 655(f). Id.
at 968-71, 76-79.
While Judges Leventhal and Fahy so concluded in Indus-
trial Union, each wrote (and reasoned) separately.5 Id. To
the extent that a common rationale supports their opinions,
we think it is this: In the absence of a regulation (or
statutory language) defining the key terms of a jurisdictional
statute, we should defer to an agency's interpretation of that
statute "if it is reasonable." Id. at 969; compare id. (Leven-
thal, J.) ("It is not part of our judicial function, nor do we
have any inclination, to dictate to agencies how they may or
may not promulgate their actions. Agencies are vested with
considerable discretion in such matters.... We should give
deference to the agency's choice if it is reasonable.") (citation
omitted), with id. at 976 (Fahy, J.) ("The Secretary of Labor
throughout these proceedings has maintained that the ruling
was issued [before the petition was filed], and it is recognized
that his position is entitled to weight.").6
__________
5 The per curiam opinion in Industrial Union states only a
result; it does not identify any agreed upon analysis supporting the
result. See Industrial Union, 570 F.2d at 966 ("The court now
announces its reasons as follows: (1) Judges Fahy and Leventhal
agree that the court has jurisdiction of the petition filed by the
AFL-CIO. Judge Wilkey, dissenting in this respect, is of the view
that this petition is premature and should be dismissed for lack of
jurisdiction. Therefore, the motion to dismiss the Union's petition
for review, on grounds of prematurity and lack of jurisdiction, is
denied.").
6 Industrial Union's "holding" may not survive National Grain
and Western Union, which declined to defer to agency interpreta-
tions of statutes governing the timing of judicial review, where
those interpretations were rendered in the absence of (National
Grain), or were contrary to (Western Union), agency regulations.
See National Grain, 845 F.2d at 346 (rejecting agency interpreta-
tion of "promulgation" as synonymous with regulatory definition of
"issuance" because "[i]t is clear from a reading of 29 U.S.C. s 655(f)
that Congress intended" "issuance" and "promulgation" to be de-
fined differently); Western Union, 773 F.2d at 378 ("the FCC ...
Finally, while EPA failed to bring it to our attention and
during oral argument seemed reluctant to rely on it, EPA has
a regulation that we think plainly forecloses Horsehead's
interpretation of "promulgation." The regulation prescribes
the procedure for approving RCRA de-listing petitions, pro-
viding in relevant part:
After evaluating all public comments, the Administrator
will make a final decision by publishing in the Federal
Register a regulatory amendment or a denial of the
petition.
40 C.F.R. s 260.20(e) (1997) (emphasis added). The plain
import of section 260.20(e) is that until Federal Register
publication has occurred, the Administrator has not "ma[de] a
final decision" on a de-listing petition. Because only final
agency action is reviewable under either section 6976(a) (enti-
tled "Review of final regulations and certain petitions") or the
APA, see Dalton v. Specter, 511 U.S. 462, 468-69 (1994),
"promulgation" cannot occur in advance of Federal Register
publication.
Although the result we reach may seem harsh, we note that
"nothing prevented [Horsehead] from supplementing its pre-
mature petition with a later protective petition--... as we
have repeatedly urged petitioners to do in analogous situa-
tions...." Western Union, 773 F.2d at 380.
III. CONCLUSION
For the foregoing reasons, we hold as follows: (1) section
6976(a)(1) establishes a filing window, not a filing deadline,
which opens on the date of "promulgation"; (2) at least in the
absence of a contrary agency regulation, "promulgation" as
used in section 6976(a)(1) means the date of Federal Register
__________
also opposes this motion to dismiss" on premature filing ground)
(parentheses omitted).
Even assuming we have not retreated from Industrial Union,
our according EPA's interpretation of "promulgation" the deference
Industrial Union suggests is appropriate would not aid Horse-
head's rival interpretation.
publication; (3) Horsehead petitioned this court for review of
the de-listing rule twelve days before the rule was promulgat-
ed; and (4) we are therefore without jurisdiction to reach the
merits of Horsehead's petition. Accordingly, the instant peti-
tion is
Dismissed.