Molycorp v. U.S. Environmental Protection Agency
| Decision Date | 17 December 1999 |
| Docket Number | No. 98-1400,98-1400 |
| Parties | (D.C. Cir. 1999) Molycorp, Inc.,Petitioner v. U.S. Environmental Protection Agency, Respondent Lead Industries Association, Inc., et al., Intervenors |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
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.
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.
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 did it discuss the difference between beneficiation 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. § 261.4(b)(7)(i).
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 54 Fed. Reg. 36,619 (1989). Processing, on the other hand, generates Id. Under the EPA's definition, beneficiation is completed at a specific point in time; after that, all activities are processing. This means that a step that would otherwise be considered beneficiation will be considered processing if it is performed on material that has already undergone processing.
In 1998, the EPA issued a Technical Background Document, Identification and Description of Mineral Processing Sectors and Waste Streams. The 1038-page document addresses 49 different mineral commodities. It discusses each commodity, explains the steps used in its production, and describes the wastes generated by its extraction, beneficiation, and processing.
At issue is the section of the Technical Background Document discussing the rare earth industry. The draft version had described Molycorp's operations as producing some waste streams from beneficiation and others from processing. 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 beneficiation, not processing. But the final document repeated the Agency's conclusion that for rare earths, "the beneficiation/processing line occurs between ore preparation and acid digestion when the ore is vigorously attacked with concentrated acids, resulting in the physical destruction of the ore structure," and that "all solid wastes arising from [any] operation(s) after the initial mineral processing operation are considered mineral processing wastes, rather than beneficiation 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 conclusions were inconsistent with the Bevill Amendment, and that the 1989 rule was unlawfully vague insofar as it defined beneficiation.
We begin (and end) by considering whether we have jurisdiction 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 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." 42 U.S.C. § 6976(a)(1). As Molycorp recognizes, this statute is not merely a venue provision, requiring that...
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