American Portland Cement Alliance v. E.P.A.

• Decision Date: 13 December 1996
• Docket Number: 95-1231,95-1237 and 95-1252,Nos. 95-1230,s. 95-1230
• Citation: 101 F.3d 772
• Parties: , 322 U.S.App.D.C. 99, 27 Envtl. L. Rep. 20,535 AMERICAN PORTLAND CEMENT ALLIANCE, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and Carol M. Browner, Respondents, Cement Kiln Recycling Coalition, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 772

101 F.3d 772

43 ERC 1705, 322 U.S.App.D.C. 99, 27

Envtl. L. Rep. 20,535

AMERICAN PORTLAND CEMENT ALLIANCE, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY and Carol M. Browner, Respondents Cement Kiln Recycling Coalition, et al., Intervenors.

Nos. 95-1230, 95-1231, 95-1237 and 95-1252.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 28, 1996.

Decided Dec. 13, 1996.

On Petitions for Review of an Order of the Environmental Protection Agency.

Richard G. Stoll, Jr., argued the cause, for petitioners American Portland Cement Alliance and Cement Kiln Recycling Coalition, with whom David P. Novello, was on the briefs. Larry D. Sharp, Washington, DC, entered an appearance.

David R. Case, Washington, DC, argued the cause and filed the briefs, for petitioners Safe Cement Alliance of Texas, et al.

Mary F. Edgar, Attorney, U.S. Department of Justice, argued the cause, for respondents, with whom Lois J. Schiffer, Assistant Attorney General, Washington, DC, was on the brief. Lawrence E. Starfield, Assistant General Counsel, Environmental Protection Agency, entered an appearance.

Before: WALD, HENDERSON and ROGERS, Circuit Judges.

ROGERS, Circuit Judge:

The sole question in this appeal is whether this court has jurisdiction under § 7006(a)(1) of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. §§ 6901 et seq. (1982), to review petitions challenging the "Regulatory Determination on Cement Kiln Dust," issued by the Environmental Protection Agency ("EPA"). 60 Fed.Reg. 7,366 (Feb. 7, 1995). In the Regulatory Determination, EPA decided that cement kiln dust did not warrant full hazardous waste regulation under Subtitle C of RCRA, 42 U.S.C. §§ 6921-6939e and that it should instead be subject to tailored standards to be developed by EPA. Petitioner Safe Cement Alliance of Texas, et al. ("Safe Cement"), a coalition of environmental and citizens' groups, which include persons residing near cement kilns, challenges as arbitrary and capricious EPA's decision not to apply full Subtitle C regulation. Both Safe Cement and EPA contend that the court has jurisdiction to review Safe Cement's petition. Petitioner American Portland Cement Alliance, et al. ("American Portland"), a trade association representing cement manufacturers and marketers, maintains that this court lacks jurisdiction over the petition because EPA's Regulatory Determination does not constitute one of the three actions designated as reviewable under RCRA § 7006(a)(1), but instead is simply a determination to undertake rulemaking in future. ¹ Alternatively, if the court determines that it has jurisdiction over the Regulatory Determination, American Portland seeks review of its petition, filed protectively, which maintains that EPA's decision to subject kiln dust to tailored standards is legally, technically, and scientifically flawed. ² Because we conclude that the Regulatory Determination is not reviewable under § 7006(a)(1), we dismiss the petitions for lack of jurisdiction.

I.

RCRA subtitle C, 42 U.S.C. §§ 6921-6939e, establishes a "cradle to grave" federal regulatory system for the treatment, storage, and disposal of hazardous wastes. See Chemical Waste Management, Inc. v. Hunt, 504 U.S. 334, 338 n. 1, 112 S.Ct. 2009, 2011-12 n. 1, 119 L.Ed.2d 121 (1992). In 1980, Congress adopted the "Bevill Amendment," which exempted certain low-toxicity wastes, including cement kiln dust, from the otherwise applicable subtitle C scheme for hazardous wastes. See RCRA § 3001(b)(3)(A), 42 U.S.C. § 6921(b)(3)(A) (1995). ³ Pursuant to the Bevill Amendment, EPA took three steps. Id. § 3001(b)(3)(C), 42 U.S.C. § 6921(b)(3)(C) (1995). First, it promulgated a regulation excluding cement kiln dust from the definition of hazardous waste. 40 C.F.R. § 261.4(b)(8) (1995). Second, pursuant to RCRA § 8002(o), it submitted a report to Congress on the results of a "detailed and comprehensive study of the adverse effects on human health and the environment, if any, of the disposal of cement kiln dust waste." 42 U.S.C. § 6982(o) (1995). Third, as required by RCRA § 3001(b)(3)(C), ⁴ based on its report to Congress, comments on the report, and data collected after its submission to Congress, on February 7, 1995, EPA published its Regulatory Determination on Cement Kiln Dust. See 60 Fed.Reg. 7,366.

In its Determination, EPA announced its conclusion that "additional control of [cement kiln dust] is warranted in order to protect the public from human health risks and to prevent environmental damage resulting from current disposal of this waste." Id. at 7,366. Rather than subjecting cement kiln dust to existing Subtitle C regulations applicable to all hazardous wastes not exempted by the Bevill Amendment, an approach EPA judged not "feasible" and "prohibitively burdensome" on the cement industry, EPA undertook to "develop a program tailored to local cement plant conditions to control the specific risks identified while minimizing compliance costs." Id. at 7,376. EPA noted that "[u]ntil the tailored regulations are published by the Agency, [cement kiln dust] will retain the Bevill exemption and the status of [cement kiln dust] under RCRA Subtitle C will remain unchanged." Id. at 7,366.

II.

RCRA § 7006(a), authorizing judicial review of certain EPA actions, provides, in relevant part:

Any judicial review of final regulations promulgated pursuant 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 accordance 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 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....

(2) in any judicial proceeding brought under this section in which review is sought of a determination under this chapter required to be made on the record after notice and opportunity for hearing, if any party seeking review under this chapter applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that the information is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Administrator, the court may order such additional evidence ... to be taken before the Administrator....

42 U.S.C. § 6976(a) (1995). The reference to Title 5 is to the judicial review provision of the Administrative Procedure Act ("APA"), which provides, in relevant part, that "[a] person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702 (1996).

By its plain terms, RCRA § 7006(a)(1) provides for review by this court of only three types of EPA actions: the promulgation of final regulations, the promulgation of requirements, and the denial of petitions for the promulgation, amendment or repeal of RCRA regulations. ⁵ Unlike the judicial review provisions for other environmental statutes, namely the Clean Air Act, see 42 U.S.C. § 7607(b)(1), ⁶ and the Clean Water Act, see 33 U.S.C. § 1369(b)(1), ⁷ RCRA does not explicitly provide for review of EPA determinations in a Circuit Court of Appeals. Because Congress clearly knows how to provide this court with jurisdiction over "determinations" when it so intends, our analysis might conclude here were it not for the fact that on two prior occasions this court has reached the merits of petitions challenging regulatory determinations pursuant to the Bevill Amendment. Natural Resources Defense Council v. EPA, 25 F.3d 1063, 1065 (D.C.Cir.1994) (upholding EPA's determination not to list used oil as a hazardous waste under RCRA Subtitle C); Environmental Defense Fund v. EPA, 852 F.2d 1309, 1312 (D.C.Cir.1988) (denying petitions challenging EPA's "regulatory determination" to extend the Bevill exemption to certain mining wastes and to propose future regulations for those wastes under Subtitle D of RCRA). Although neither opinion addressed this court's jurisdiction, the court has recognized that "[i]t is axiomatic in our federal jurisprudence that inferior courts, including ... this Court, have only that jurisdiction afforded to them by Congress." Antolok v. United States, 873 F.2d 369, 373 (D.C.Cir.1989). Therefore, belatedly, we confront the issue now.

Upon so doing we conclude that petitioners' contentions reenforce the conclusion mandated by the plain language of § 7006(a). The plain language indicates that Congress intended for this court to have original jurisdiction to review three specific types of agency action; although Congress used the term "determination" in the jurisdictional passage of § 7006(a)(2) and has expressly given the court original jurisdiction over "determinations" in other statutes, it did not give the court jurisdiction to review "determinations" in this context. In mandating that the agency take the action challenged here, Congress described the action as a "determination." 42 U.S.C. § 6921(b)(3)(C). Moreover, the text of the Bevill Amendment juxtaposes the terms "determin[ation]" and "regulation[ ]," id., signifying that, consistent with the principle that effect must be given to each word of a statute, the two terms were intended to have distinct meanings. See Commercial Union Ins. Co. v. United States, 999 F.2d 581, 587 (D.C.Cir.1993); NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 46.06, at 119 (5th ed.1992). On the strength of these facts, it seems clear the Congress has declined to give this court original jurisdiction over such determinations. That the court has taken jurisdiction in the past does not affect the analysis because jurisdictional issues...