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


BARRICK GOLDSTRIKE

v.

BROWNER, CAROL M.


99-5298a

D.C. Cir. 2000


*	*	*


Randolph, Circuit Judge: This is an appeal from the  judgment of the
district court dismissing the complaint of  Barrick Goldstrike Mines
Inc. The case arises under s 313  of the Emergency Planning and
Community Right-to-Know  Act ("EPCRA"), 42 U.S.C. s 11023. EPCRA
requires cer- tain types of facilities that "manufactured,"
"processed" or  "otherwise used" listed "toxic chemicals" in amounts
exceed- ing specified thresholds to report "releases" of these chemi-
cals by July 1 of each year to the Environmental Protection  Agency.
Id. s 11023(b)(1). EPA uses the information to  administer a "toxic
release inventory" program pursuant to  EPCRA. The program makes the
toxic release information  public. Although the toxic release
inventory program original- ly applied only to manufacturing
facilities, EPA extended it  by regulation to several other industry
groups, including  metal mining. See 62 Fed. Reg. 23,834 (1997).
Barrick  mines gold and other precious metals in Nevada. The compa- ny
alleges that in applying the program to mining, EPA in  fact revised
the program; that its revisions were substantive;  that they were not
made through rulemaking, as they should  have been; and that the
revisions were made instead through  statements in "rulemaking
preambles" and in detailed di- rectives issued in the form of
"guidance" and a letter. Brief  of Appellant Barrick at 4. On EPA's
motion the district  court dismissed the complaint for lack of


EPCRA contains no judicial review provision. Barrick  therefore invoked
the district court's general federal question  jurisdiction (28 U.S.C.
s 1331) and sought, pursuant to the  Administrative Procedure Act (5
U.S.C. ss 701-706, and 28  U.S.C. s 2201), a declaratory judgment that
the three EPA  actions were contrary to law. As to jurisdiction, the
question  is whether Barrick has challenged "final agency action"
with- in the meaning of the APA, see 5 U.S.C. s 704. As to  ripeness,
we must determine whether Barrick, like the drug 


manufacturers in Abbott Laboratories v. Gardner, 387 U.S.  136 (1967),
but unlike the cosmetics companies in Toilet  Goods Ass'n v. Gardner,
387 U.S.158, 164 (1967), must change  its conduct or risk costly
sanctions, and whether the issues  presented in Barrick's complaint
are suitable for review at  this time. See Clean Air Implementation
Project v. EPA,  150 F.3d 1200, 1204-05 (D.C. Cir. 1998).


1. Barrick claimed that for certain mining operations,  including its
own, EPA had revised the so-called de minimis  exception set forth in
40 C.F.R. s 372.38(a) without conduct- ing a rulemaking. Barrick moves
waste rock. The rock  contains trace concentrations of listed
substances--toxic  chemicals--including copper, nickel, silver and
other metal- bearing minerals. Under EPA's de minimis regulation, if a
 toxic chemical in a mixture amounts to less than 1% (or in the  case
of a carcinogen, less than 0.1%) the substance is not  counted as
having been released and does not count toward  the manufacturing,
processing or "otherwise used" threshold.  Id. In EPA's "Metal Mining
Facilities" guidance, posted on  EPA's website in January 1999,1 the
agency stated that the  chemicals in waste rock are not eligible for
this de minimis  exception because waste rock is not "manufactured,
processed  or otherwise used." Office of Pollution Prevention and Tox-
ics, EPA, EPCRA Section 313 Industry Guidance: Metal  Mining
Facilities 3-28 (Jan. 1999) [hereafter "1999 Guid- ance"].


Counsel for EPA admitted at oral argument that EPA's  position on the
application of the de minimis exception to  waste rock is final. If
Barrick does not conform to EPA's  view in fulfilling its reporting
obligation it will be subject to  an enforcement action and fines.
Even without counsel's  concession, the finality of EPA's position is
clear enough. 




__________

n 1 The guidance went through several iterations from 1997 to  1999,
some of which were published in the Federal Register. See,  e.g., 62
Fed. Reg. 63,548 (1997). According to Barrick, the January  1999
version is "comprehensive and authoritative" and represents  the
agency's principal set of reporting instructions for mining 
companies. Brief of Appellant Barrick at 5.


That the issuance of a guideline or guidance may constitute  final
agency action has been settled in this circuit for many  years. See,
e.g., Better Gov't Ass'n v. Department of State,  780 F.2d 86, 92-96
(D.C. Cir. 1986); Ciba-Geigy Corp. v.  EPA, 801 F.2d 430, 435 & n.7,
436 (D.C. Cir. 1986). In Better  Government we rejected the
proposition that if an agency  labels its action an "informal"
guideline it may thereby escape  judicial review under the APA. 780
F.2d at 93. In Ciba- Geigy we held that a letter from an agency
official stating the  agency's position and threatening enforcement
action unless  the company complied constituted final agency action.
801  F.2d at 436-39, 438 n.9. In Appalachian Power Co. v. EPA,  208
F.3d 1015, 1020-23 (D.C. Cir. 2000), we held again that a  guidance
document reflecting a settled agency position and  having legal
consequences for those subject to regulation may  constitute "final
agency action" for the purpose of judicial  review. For finality to be
found in these cases two conditions  had to be satisfied: "First, the
action must mark the 'consum- mation' of the agency's decisionmaking
process, Chicago &  Southern Airlines, Inc. v. Waterman S.S. Corp.,
333 U.S. 103,  113 (1948)--it must not be of a merely tentative or
interlocu- tory nature. And second, the action must be one by which 
'rights or obligations have been determined,' or from which  'legal
consequences will flow,' Port of Boston Marine Termi- nal Assn. v.
Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71  (1970)." Bennett v.
Spear, 520 U.S. 154, 177-78 (1997). Here  there is no doubt that EPA
will refuse to apply the de  minimis exception to Barrick's waste rock
and that its refus- al to do so has legal consequences--namely, that
Barrick is  bound to keep track of its movement of waste rock and


As against this EPA contended at oral argument that the  1999 Guidance
changed nothing; that EPA had already taken  the position Barrick
complains about in the preamble to the 




__________

n 2 EPA's 1999 metals mining guidance commanded: "you must  report ...
the waste rock." 1999 Guidance, at 3-28. Other  portions of the 1999
Guidance, not challenged in this case, are  framed as


rule subjecting the mining industry to the toxic reporting  program;
and that Barrick should have aimed its complaint  at the preamble, but
had not done so. There are three reasons  for rejecting this line of
reasoning.3 First, EPA never made  the argument in its brief in this
court. See, e.g., Carducci v.  Regan, 714 F.2d 171, 177 (D.C. Cir.
1983). It did not even  cite the page or pages in the preamble that
supposedly  support its position. Second, Barrick did indeed challenge
 EPA positions expressed in the preambles (Complaint p 25;  Brief at
4) and did so in a timely fashion because no statute of  limitations
applied. Third, we have recognized that final  agency action may
result "from a series of agency pronounce- ments rather than a single
edict." Ciba-Geigy, 801 F.2d at  435 n.7. Hence, a preamble plus a
guidance plus an enforce- ment letter from EPA could crystallize an
agency position  into final agency action within APA s 704's meaning.
Fairly  read, this is what Barrick's complaint alleges.4




__________

n 3 EPA's brief contained a quite different argument--namely  that the
1999 Guidance was not final because it was not "binding"  and it was
not binding because it merely explained "EPA's current  view of how
the statutory and regulatory requirements of the [toxic  reporting]
program apply to the metal mining industry and do not  impose any
binding new requirements." Brief for Federal Apellees  at 16. It
appears that EPA has abandoned this line of argument in  light of our
intervening decision in Appalachian Power Co. v. EPA.  If it has not,
if EPA still wishes us to consider the argument despite  the quite
different position it took at oral argument, we reject it for  the
reasons given in Appalachian Power, 208 F.3d at 1020-23.  There is not
the slightest doubt that EPA directed regulated  entities to comply
with the 1999 Guidance regarding their treatment  of waste rock, see
supra note 1, and the other two interpretations  Barrick
protests--conversion of one metal compound into another  within the
same compound category, and impurities in dore, see  infra pp. 6-8.


4 In a case (unlike this one) in which our jurisdiction was  restricted
to reviewing final "regulations," we held that a statement  in a
preamble to a proposed rule could not be reviewed. See  Florida Power
& Light Co. v. EPA, 145 F.3d 1414, 1418-20 (D.C.  Cir. 1998); see also
Molycorp, Inc. v. EPA, 197 F.3d 543 (D.C. Cir.  1999).


We also agree with Barrick that this aspect of its case is  ripe for
judicial review. The questions presented are purely  legal.5 Nothing
we can imagine happening would bring the  issues into greater focus or
assist in determining them. And  there is certainly the prospect of
hardship to Barrick. Its  only alternative to obtaining judicial
review now is to violate  EPA's directives, refuse to report releases
involving waste  rock, and then defend an enforcement proceeding on
the  grounds it raises here. In that respect the case is indistin-
guishable from Ciba-Geigy Corp. v. EPA, 801 F.2d at 438-39,  in which
we held an analogous claim ripe for judicial review.


2. Barrick's second claim deals with whether it is "manu- facturing" a
"toxic chemical" when, in the course of extracting  gold from ore,
trace amounts of naturally occurring metal  compounds change form,
generally from metal sulfides to  metal oxides. In the 1999 metals
mining guidance, EPA  announced that it would treat these changes as
the manufac- turing of toxic chemicals, a reportable event. See 1999
Guid- ance, at 3-11. Barrick objects that the 1999 Guidance is 
inconsistent with s 313(c) of the statute and 40 C.F.R.  s 372.65(c),
which do not permit the agency to treat as  "manufacturing" the
conversion of one metal compound into  another within the same
compound category. No further  detail is needed to understand why
there is final agency  action here and why this claim is ripe. Here
too, EPA  counsel conceded at oral argument that the position on this 
subject expressed in the 1999 Guidance is the agency's final 
position. The 1999 Guidance itself (at 3-11) says just that:


Metal mining facilities should be aware of chemical con- versions that
may take place during beneficiation. The  following types of
conversions constitute manufacturing:




__________

n 5 Barrick claimed not only that EPA had issued a substantive  rule
without engaging in rulemaking but also that it had misinter- preted
its regulation (40 C.F.R. s 372.38(a)) and had acted arbi- trarily by
saying, with respect to the de minimis exception, that  waste rock is
not manufactured, but saying elsewhere that all  "chemicals which
exist in nature have been 'manufactured' at some  point," 62 Fed. Reg.
at 23,857.


. Conversion of one metal compound to another  within the same compound
category. For example, a  lead mine may convert galena (lead sulfide
in ore) to  lead oxide during beneficiation.


Thus, if Barrick refuses to abide by the 1999 Guidance, the  company
will be subject to an enforcement action.


3. Barrick's third and last claim relates to the fact that its  mine
produces metal bars--dore--that are gold and silver but  also contain
tiny amounts of naturally occurring elements and  compounds from rock,
compounds and elements that EPA  lists as "toxic chemicals." Under the
statute, "the term  process means the preparation of a toxic chemical,
after its  manufacture, for distribution in commerce." 42 U.S.C.  s
11023(b)(1)(C)(ii). Barrick thus believes that a "toxic  chemical"
cannot be "processed" unless it has first been  "manufactured." From
this it concludes that in producing its  dore it has not processed
toxic chemicals and therefore has no  reporting obligation under the
statute. EPA's opposite con- clusion, Barrick contends, is embodied in
its statement in the  preamble to the 1997 rule expanding coverage to
the mining  industry, in the 1999 Guidance and in a letter, dated
March  18, 1999, from the Chief of EPA's Toxic Release Inventory 
Branch to another mining company. The preamble states  that the term
"manufacture" is not limited to human activity.  "Manufacture" of a
toxic chemical includes its "production"  and "EPA interprets
'production' to include creation." 62  Fed. Reg. at 23,857. Thus,
according to the preamble "chem- icals which exist in nature have been
'manufactured' at some  point." Id. The 1999 Guidance states the same
conclusion  without giving the reasoning:


Non-Target Metals and Metal Compounds. When pro- cessing the target
metals and metal compounds at your  facility, the ore you are
beneficiating may also contain  other non-target EPCRA Section 313
metals and metal  compounds. If any portion of these non-target metals
 and metal compounds remain in the metal concentrate  distributed into
commerce, you must consider them to- ward the processing threshold of
25,000 pounds. If the 


EPCRA Section 313 chemicals are completely removed  from your product
prior to distribution into commerce,  the chemicals are not considered
processed and do not  have to be considered toward the processing
threshold.


1999 Guidance, at 3-15. The March 18, 1999, "guidance"  letter from the
branch chief also states the same conclusion.  In order to comply with
EPA's interpretation, Barrick claims  that in 1999 it wound up
reporting that it had " 'processed'  the naturally occurring metal
impurities that it could not  completely remove from its dore." Reply
Brief of Appellant  Barrick at 21.


Nothing in EPA's brief or in its oral argument indicates  that the
EPA's position on this subject is tentative. The  March letter is firm
and conclusive, as is the 1999 Guidance.  Both state what must be done
to comply with EPA's toxic  release inventory program. Legal
consequences flow from  the position expressed--Barrick must keep
records and re- port to EPA unless it wishes to risk an enforcement
action.  That the agency action is embodied in interpretative state-
ments in a rulemaking preamble, in a guidance document, and  in a
letter from a branch chief is not disqualifying. As we  have said, the
final agency action in Ciba-Geigy, 801 F.2d at  436 n.8, consisted of
a "series of steps taken by EPA"  culminating in a letter from an EPA
official stating the  agency's position.6 We have no doubt that EPA,
in respond- ing by letter to industry inquiries, assists companies in
bring- ing themselves into compliance. But it scarcely follows that a 
company may not obtain judicial review of the agency's  interpretation
of the statute or regulation. There is of course  the matter of
timing. We have already decided that the first  two objections Barrick
raised are ripe for review and we see  no basis for ruling any
differently on this claim. It too  presents a pure question of law and
withholding review has  sufficient adverse effects on Barrick's




__________

n 6 The final agency action in Her Majesty the Queen v. EPA, 912  F.2d
1525, 1530-32 (D.C. Cir. 1990), consisted of a letter from an  EPA
official reiterating the agency's interpretation of a provision in 
the Clean Air Act.


For the reasons stated, the judgment of the district court is  reversed
and the case is remanded for further proceedings.


So ordered.