197 F.3d 543 (D.C. Cir. 1999), 98-1400, Molycorp v. United States Environmental Protection Agency

Docket Nº:98-1400
Citation:197 F.3d 543
Party Name:Molycorp, Inc.,Petitioner v. U.S. Environmental Protection Agency, Respondent Lead Industries Association, Inc., et al., Intervenors
Case Date:December 17, 1999
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 543

197 F.3d 543 (D.C. Cir. 1999)

Molycorp, Inc.,Petitioner

v.

U.S. Environmental Protection Agency, Respondent

Lead Industries Association, Inc., et al., Intervenors

No. 98-1400

United States Court of Appeals, District of Columbia Circuit

December 17, 1999

Argued November 29, 1999

On Petition for Review of an Order of the U.S. Environmental Protection Agency

James L. Meeder argued the cause for petitioner. With him on the briefs was Robert D. Wyatt.

Daniel R. Dertke, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief was Lois J. Schiffer, Assistant Attorney General. Steven Silverman, Attorney, U.S. Environmental Protection Agency, entered an appearance.

Before: Silberman, Rogers and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Silberman.

Page 544

Silberman, Circuit Judge:

Molycorp, Inc., petitions for review of a Technical Background Document issued by the Environmental Protection Agency under the Resource Conservation 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, California, 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, yttrium, 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 involves excavation from an open pit, followed by crushing, grinding, and flotation to concentrate bastnasite, a fluorocarbonate 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 Conservation and Recovery Act (RCRA), 42 U.S.C. § 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 from regulating "solid waste from the extraction, beneficiation, and processing of ores and minerals," until it completed a study of the health and environmental effects of those wastes. 42 U.S.C. § 6921(b)(3)(A)(ii). After much delay--and some litigation, see generally Solite Corp. v. EPA, 952 F.2d 473 (D.C. Cir. 1991)--the EPA issued a regulatory determination concluding that wastes uniquely associated with mineral extraction 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...

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