On Petition for Review of an Order of the Environmental Protection Agency
Before: Wald, Henderson and Garland, Circuit Judges.
Karen LeCraft Henderson, Circuit Judge
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Opinion for the court filed by Circuit Judge Henderson.
The petitioner, Horsehead Resource Development Company (Horsehead), asks this Court to vacate a de-listing rule of the Environmental Protection Agency (EPA). The rule excludes electric arc furnace dust treated by the Super Detoxtm process from the list of "hazardous wastes" regulated by the Resource Conservation and Recovery Act, 42 U.S.C. Section(s) 6901 et seq., (RCRA). Horsehead contends that EPA promulgated the de-listing rule in violation of the Administrative Procedure Act, 5 U.S.C. Section(s) 551 et seq., (APA), and the National Environmental Policy Act, 42 U.S.C. Section(s) 4321 et seq., (NEPA). Further, it claims that the de-listing rule violates RCRA and the Pollution Prevention Act, 42 U.S.C. Section(s) 13101 et seq. The intervenors and respondent EPA dispute Horsehead's claims and, in addition, argue that Horsehead's petition should be dismissed for lack of jurisdiction, either because the petition was filed prematurely or because Horsehead lacks standing.
We hold that Horsehead's petition was filed prematurely and we are therefore without jurisdiction to consider it. Accordingly we dismiss the petition and do not reach the other arguments advanced by the parties.
Electric arc furnace dust (Dust) is a byproduct of the primary production of steel. According to the petitioner, some 550,000 tons of Dust are generated annually by domestic steel mills, making it "the second largest inorganic hazardous waste stream in the United States." Pet'r Br. at 2. Dust is listed as a RCRA hazardous waste because it contains cadmium, hexavalent chromium, lead and other potentially toxic compounds. See 40 C.F.R. Section(s) 261.32 (1997); Steel Mfrs. Ass'n v. EPA, 27 F.3d 642, 645 (D.C. Cir. 1994) (discussing Dust treatment standards).
In August 1992, Conversion Systems, Inc. (CSI), an intervenor here, petitioned EPA to de-list Dust treated by its Super Detoxtm process. On November 2, 1993, EPA published a Notice of Proposed Rulemaking, indicating its intent to grant CSI's de-listing petition. See Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Proposed Exclusion, 58 Fed. Reg. 58,521 (1993) (to be codified at 40 C.F.R. pt. 261) (proposed Nov. 2, 1993). Horsehead subsequently submitted comments in opposition to the proposed de-listing rule, raising both environmental and economic issues. *fn1 JA 209-303, 317-77.
Nevertheless, over Horsehead's objections, EPA decided to make final the proposed de-listing rule without significant modification. Accordingly, on May 30, 1995 the EPA Administrator signed the final de-listing rule and EPA distributed copies of it to Horsehead and other interested parties. *fn2 Horsehead filed the instant petition for review on June 1, 1995. EPA filed the de-listing rule with the Office of the Federal Register on June 12, 1995 and the rule was published in the Federal Register and became effective the next day, June 13, 1995. See Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Final Exclusion, 60 Fed. Reg. 31,107 (1995) (to be codified at 40 C.F.R. pt. 261).
Our jurisdiction to hear Horsehead's petition springs from 42 U.S.C. Section(s) 6976(a), which ...