UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


MOLYCORP INC

v.

EPA


98-1400a

D.C. Cir. 1999


*	*	*


Silberman, Circuit Judge: Molycorp, Inc., petitions for  review of a
Technical Background Document issued by the  Environmental Protection
Agency under the Resource Con- servation and Recovery Act. Because the
document is not a  regulation that we may review, we dismiss the
petition for  lack of jurisdiction.


I.


Molycorp, Inc., operates a mine in Mountain Pass, Califor- nia, about
50 miles southwest of Las Vegas in the high desert  of eastern San
Bernardino County. The mine is the only  major domestic source of rare
earth metals: scandium, yttri- um, and the lanthanides (elements with
atomic numbers 57  through 71, running from lanthanum to lutetium on
the  periodic table). These elements are used as catalysts and  also
have applications in such fields as lighting, metallurgy,  ceramics,
magnets, and electronics. The mining process in- volves excavation
from an open pit, followed by crushing,  grinding, and flotation to
concentrate bastnasite, a fluorocar- bonate ore of rare earth metals.
The concentrated ore is  roasted and then leached with hydrochloric
acid, producing  cerium solids (which can be sold after thickening,
filtering,  and drying) and lanthanide chlorides (which are subjected
to  solvent extraction to separate individual lanthanide elements), 
as well as various waste products.


This case concerns the application of the Resource Conser- vation and
Recovery Act (RCRA), 42 U.S.C. s 6901 et seq., to  Molycorp's
operations. RCRA establishes a comprehensive  scheme for the
regulation of the handling and disposal of solid  wastes; under
Subtitle C, it imposes especially stringent  restrictions on hazardous
wastes. But Subtitle C does not  apply to all hazardous wastes. In
1980, Congress adopted the  Bevill Amendment, which prohibited the EPA


ing "solid waste from the extraction, beneficiation, and pro- cessing
of ores and minerals," until it completed a study of  the health and
environmental effects of those wastes. 42  U.S.C. s 6921(b)(3)(A)(ii).
After much delay--and some liti- gation, see generally Solite Corp. v.
EPA, 952 F.2d 473 (D.C.  Cir. 1991)--the EPA issued a regulatory
determination con- cluding that wastes uniquely associated with
mineral extrac- tion and beneficiation (but not processing) were
produced in  large volumes and tended to present a lower risk of human
 exposure than industrial waste, so they would not be subject  to
Subtitle C regulation. 51 Fed. Reg. 24,496 (1986). The  determination
did not identify specific waste streams that  were exempt, nor did it
discuss the difference between benefi- ciation and processing. In
1989, the EPA addressed the  Bevill status of processing wastes and
determined by rule  that a specific mineral processing waste would be
exempt only  if it met "high volume" and "low hazard" criteria. 54
Fed.  Reg. 36,592 (1989). The rule also defined "beneficiation" in 
terms of a list of activities including "crushing, grinding,  washing,
dissolution, crystallization, filtration, sorting, sizing,  drying ...
and heap, dump, vat, tank and in situ leaching."  40 C.F.R. s


This distinction between beneficiation and processing is  significant,
because all beneficiation wastes are excluded from  Subtitle C
regulation, while processing wastes are excluded  only if they meet
the high volume and low hazard criteria.  To explain the definition,
the EPA noted that beneficiation  tends to produce "high volume solid
waste streams that are  essentially earthen in character. Despite the
fact that valu- able constituents have been removed, the remaining
material  is often physically and chemically similar to the material
(ore  or mineral) that entered the operation." 54 Fed. Reg. 36,619 
(1989). Processing, on the other hand, generates "waste  streams that
generally bear little or no resemblance to the  materials that entered
the operation.... These operations  most often destroy the physical
structure of the material,  producing waste streams that are not
earthen in character."  Id. Under the EPA's definition, beneficiation
is completed at  a specific point in time; after that, all activities


ing. This means that a step that would otherwise be consid- ered
beneficiation will be considered processing if it is per- formed on
material that has already undergone processing.


In 1998, the EPA issued a Technical Background Docu- ment,
Identification and Description of Mineral Processing  Sectors and
Waste Streams. The 1038-page document ad- dresses 49 different mineral
commodities. It discusses each  commodity, explains the steps used in
its production, and  describes the wastes generated by its extraction,
beneficia- tion, and processing.


At issue is the section of the Technical Background Docu- ment
discussing the rare earth industry. The draft version  had described
Molycorp's operations as producing some  waste streams from
beneficiation and others from process- ing. Molycorp submitted
comments on the draft, objecting  that the EPA's characterization of
some of its operations as  processing was inconsistent with the
beneficiation/processing  distinction set out in the 1989 rule.
According to Molycorp,  all of the operations at Mountain Pass are
extraction or be- neficiation, not processing. But the final document
repeated  the Agency's conclusion that for rare earths, "the
beneficia- tion/processing line occurs between ore preparation and
acid  digestion when the ore is vigorously attacked with concen-
trated acids, resulting in the physical destruction of the ore 
structure," and that "all solid wastes arising from [any] oper-
ation(s) after the initial mineral processing operation are 
considered mineral processing wastes, rather than beneficia- tion
wastes." It went on to identify specific waste streams  resulting from
rare earth processing operations. Molycorp  petitioned for review,
arguing that the document had been  improperly issued without notice
and comment, that its con- clusions were inconsistent with the Bevill
Amendment, and  that the 1989 rule was unlawfully vague insofar as it


II.


We begin (and end) by considering whether we have juris- diction to
entertain Molycorp's challenge, and we conclude 


that we do not for three related but conceptually distinct  reasons.


The judicial review provision of RCRA states that "a  petition for
review of action of the Administrator in promul- gating 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." 42 U.S.C. s 6976(a)(1). As Molycorp
recognizes,  this statute is not merely a venue provision, requiring
that  challenges to final regulations be brought before us rather 
than in another court. It is also a limitation on our jurisdic- tion:
we may review only final regulations, requirements, and  denials of
petitions to promulgate, amend or repeal a regula- tion. See American
Portland Cement Alliance v. EPA, 101  F.3d 772, 775 (D.C. Cir. 1996).
Petitioner claims that the  document is a regulation. To determine
whether a regulato- ry action constitutes promulgation of a
regulation, we look to  three factors: (1) the Agency's own
characterization of the  action; (2) whether the action was published
in the Federal  Register or the Code of Federal Regulations; and (3)
wheth- er the action has binding effects on private parties or on the 
agency. See Florida Power & Light Co. v. EPA, 145 F.3d  1414, 1418
(D.C. Cir. 1998). The first two criteria serve to  illuminate the
third, for the ultimate focus of the inquiry is  whether the agency
action partakes of the fundamental char- acteristic of a regulation,


The document (which was not published in the Federal  Register) states
that it "is intended solely to provide informa- tion to the public and
the regulated community regarding the  wastes that are potentially
subject to the requirements of this  title." This disclaimer, which
appears twice in the text,  continues:


While the guidance contained in this document may  assist the industry,
public and federal and state regu- lators in applying statutory and
regulatory requirements  of RCRA, the guidance is not a substitute for
those legal  requirements; nor is it a regulation itself. Thus, it
does 


not impose legally-binding requirements on any party,  including EPA,
States or the regulated community.


The EPA has slightly obscured the non-binding nature of the  document
by stating, at the time the draft document was  introduced and again
before us, that it would have an "adviso- ry" role in enforcement
proceedings. See 61 Fed. Reg. 2,338,  2,354 (1996). We take this to
mean only, as counsel assured  us at oral argument, that the agency is
advising the public as  to its present enforcement inclinations--not
that the docu- ment itself would be given any weight at all in
enforcement  proceedings.


Drawing on our cases construing the exceptions to the  APA's notice and
comment requirement, Molycorp contends  that the Technical Background
Document nevertheless must  be deemed a regulation because it has
effected a change in  EPA policy. Assuming arguendo there was such a
change,  this argument is based on a misunderstanding of our cases. 
We have said that an interpretative rule construing a legisla- tive
rule cannot be modified without the notice and comment  procedure that
would be required to change the underlying  regulation--otherwise, an
agency could easily evade notice  and comment requirements by amending
a rule under the  guise of reinterpreting it. See Paralyzed Veterans
of Am. v.  D.C. Arena L.P., 117 F.3d 579, 586 (D.C. Cir. 1997). But
the  document is not an interpretative rule. As we explained in 
Syncor Int'l Corp. v. Shalala,


[I]nterpretative rules and policy statements are quite  different
agency instruments. An agency policy state- ment does not seek to
impose or elaborate or interpret a  legal norm. It merely represents
an agency position  with respect to how it will treat--typically
enforce--the  governing legal norm. By issuing a policy statement, an 
agency simply lets the public know its current enforce- ment or
adjudicatory approach.... The primary dis- tinction between a
substantive rule--really any rule-- and a general statement of policy,


an agency intends to bind itself to a particular legal  position.


127 F.3d 90, 94 (D.C. Cir. 1997). The document does not set  out an
interpretation of RCRA or of the EPA's regulations; it  does not
impose obligations on regulated interests or on the  EPA. It is as the
government insists merely a non-binding  statement of the EPA's view
of how it plans to regard  particular activities relating to the
production of mineral  commodities. Therefore it is irrelevant whether
the EPA has  taken the same position in the past.1


A careful examination of petitioner's argument and the  record,
moreover, reveals another jurisdictional barrier. If  Molycorp were
correct in contending that EPA unlawfully  changed its 1989
regulation, it first did so back in 1991. The  Agency at that time
wrote a letter to the California Depart- ment of Health Services
saying that "the second 'leaching'  step in [Molycorp's] operation
appears to more closely resem- ble acid digestion (a mineral
processing operation) than it  does a conventional leaching
(beneficiation) process," and  identifying "lead filter cake," "iron
filter cake," and "waste  zinc contaminated with mercury" as mineral
processing  wastes generated at Mountain Pass. Then in 1992 the EPA 
expressed substantially similar views directly to Molycorp's  parent
company. Under Molycorp's theory, those letters  would have been
"regulations" subject to judicial review. Yet  the statute requires
that review be sought within ninety days  of the promulgation of the
regulation. See 42 U.S.C.  s 6976(a). Molycorp's petition would


If these problems were not enough, Molycorp's petition  suffers from a
third jurisdictional shortcoming: the issue it  presents is not ripe.
The record is less than pellucid in  identifying the specific waste
streams actually produced at  Mountain Pass, and oral argument
revealed that the parties  disagree about what wastes are produced
there. That uncer- tainty leaves open the possibility that there
ultimately will be 




__________

n 1 To be sure, as we noted in Syncor, see 127 F.3d at 96, if an 
agency took a position in an enforcement proceeding in district  court
that was clearly inconsistent with a prior enforcement policy 
statement we would not be surprised if a district court's reaction 
was unfavorable.


no disagreement over the proper regulatory classification of 
Molycorp's wastes. Thus, there does not currently exist a  concrete
controversy that is ripe for judicial review. See  Ohio Forestry
Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 736  (1998). Nor can it be
suggested that denying review now  causes hardship to Molycorp, cf.
Abbott Labs. v. Gardner, 387  U.S. 136, 152-53 (1967), because any
enforcement proceeding  against it would be based not on the document
(which has no  legal effect) but on the underlying 1989 regulation.
Molycorp  is no worse off than it would be had the document not been 


* * * *


It is difficult for us to understand why this case was  brought before
us at this time. The petition for review is  dismissed.


So ordered.