On Petition for Review of an Order of the Environmental Protection Agency
Before: Sentelle, Rogers and Tatel, Circuit Judges.
The opinion of the court was delivered by: Rogers, Circuit Judge
Opinion for the Court filed by Circuit Judge ROGERS.
The General Motors Corporation ("GM") petitions for review of May 7, 2002 letters from an enforcement official at the Environmental Protection Agency ("EPA") regarding nascent enforcement actions based on a regulatory interpretation that automobile manufacturing paint purge solvents are "solid waste" under the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. §§ 6901 et seq., upon exiting the spray painting unit. We dismiss GM's petition for lack of jurisdiction.
Subtitle C of RCRA, see 42 U.S.C. §§ 6921–6939e, "establishes a 'cradle to grave' federal regulatory system for the
treatment, storage, and disposal of hazardous wastes."
American Portland Cement Alliance v. EPA, 101 F.3d 772,
774 (D.C. Cir. 1996). The statute defines a "hazardous
waste" as "solid waste . . . [that] may pose a substantial
present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed." 42 U.S.C. § 6903(5). "Solid waste" is defined as "discarded material, including solid,
liquid, semisolid, or contained gaseous material resulting from
industrial, commercial, mining, and agricultural operations."
Id. § 6903(27). EPA regulations subject such waste to stringent standards, including, as relevant here, 40 C.F.R. Part
265 Subpart J, id. §§ 265.190–265.202, on tank systems, and
Subparts BB and CC, id. §§ 265.1050–265.1064, 265.1080–
265.1090, on air emissions from equipment and tanks that
handle hazardous waste. Hazardous waste may also be subject to standards under state regulations, see 42 U.S.C.
§ 6926, and while an authorized state may enforce its hazardous waste program in lieu of the federal program, id.
§ 6926(d), EPA has dual enforcement authority under RCRA,
id. § 6928, and may engage in pre-enforcement action or file
a complaint without its state counterpart, so long as it notifies
the authorized state. Id. § 6928(a)(2).
Under RCRA, EPA has broad investigatory and enforcement authority. EPA may require hazardous waste facilities to disclose particular information, id. § 6927, or to monitor and test for hazardous waste, id. § 6934, and EPA may inspect such facilities. Id. § 6927. Upon discovery of RCRA violations, EPA engages in pre-enforcement action by issuing an inspection report or a notice of violation to the facility. See id. §§ 6927, 6928. The facility may be afforded an opportunity to show cause why EPA should not proceed with an enforcement action. Absent such opportunity, or if EPA is unconvinced by the facility's showing, EPA can commence an enforcement action by filing an administrative complaint alleging violations of Subtitle C requirements and proposing a compliance order, suspension or revocation of the facility's permit, and a penalty. See id. § 6928(a); 40 C.F.R. Parts 22, 24. The owner or operator of the cited facility is entitled to a hearing before an administrative law judge, and upon an adverse decision, may appeal to the Environmental Appeals Board ("Board"). See 42 U.S.C. § 6928(b); 40 C.F.R. § 22.4. The Board's decision, as the final EPA decision, is judicially reviewable. See 42 U.S.C. § 6928(b); 40 C.F.R. §§ 22.27(d), 22.31. Alternatively, EPA can file a complaint directly in the federal district court for injunctive or other appropriate relief, see 42 U.S.C. § 6928(a),(h); 40 C.F.R. Parts 22, 24, including, in certain instances, fines and imprisonment. See 42 U.S.C. § 6928(d).
The underlying dispute between EPA and GM and the amici concerns the point of generation of RCRA "solid waste" in the automobile manufacturing industry's paint purge solvent processes. Shortly after the effective date of the Subparts BB and CC requirements, by letter of July 29, 1997, Elizabeth Cotsworth, the Acting Director of the EPA Office of Solid Waste,*fn1 responded to a letter from an attorney representing an unnamed client that uses solvents to clean automated spray painting guns when changing paint color.*fn2 The Cotsworth letter stated that, based on the system described, "the used solvent is waste once its leaves the spray painting unit, and [thus] . . . the equalization tank and associated piping are subject to hazardous waste regulatory requirements." After stating this "general interpretation of the federal regulations," the Cotsworth letter also advised that the "authorized state agency is responsible for interpreting its own regulations and making site specific regulatory determinations." In July 1998, EPA issued a copy of the Cotsworth letter as a supplement to the RCRA Permit Policy Compendium, which became available online to the regulated public in September 1998 on the RCRA website (hereinafter "RCRA Policy Compendium").
Beginning in 1998, EPA issued notices of violations, based on inspection reports, to several automobile manufacturing facilities, including GM plants in Doraville, Georgia and Kansas City, Kansas, as well as the Ford Motor Company's ("Ford") Avon Lake, Ohio plant, for failure to assure that the solvent piping systems used to convey purge solvents to solvent recovery tanks met the requirements under RCRA Subtitle C. In September 1999, EPA filed an administrative complaint against Ford for failure to comply with the requirements under Subparts J, BB, and CC of the regulations, alleging that "[h]azardous waste is generated at the Facility when paint lines and equipment are cleaned with solvents." The following year EPA issued a notice of violation to the Toyota Motor Manufacturing plant in Princeton, Indiana. Similar notices of RCRA violations were issued by EPA in July 2001 to the BMW Manufacturing Corporation ("BMW") plant in Spartanburg County, South Carolina, and in February and November 2001 to GM's plants in Linden, New Jersey and Bowling Green, Kentucky. EPA invited GM's Bowling Green plant "to show cause why EPA should not take formal enforcement action against GM pursuant to" § 3008(a) of RCRA, 42 U.S.C. § 6928(a).
By letter of March 10, 2000, the Alliance of Automobile Manufacturers ("AAM"), which had been in discussions with EPA officials about EPA's enforcement initiative, expressed "concern[ ] about recent interpretations applying BB and/or CC requirements to [the automobile industry's] paint and purge processes."*fn3 AAM claimed that the interpretation in the Cotsworth letter was based on an incomplete picture of such processes. Urging a categorical position that the automotive manufacturing "painting system is a process that includes the use of purge solvent throughout the process," AAM argued that the point of generation of "solid waste" does not occur until the solvent is discarded when it exits that process upon reaching the solvent recovery tank. Further, by letter of July 3, 2001, AAM claimed that "EPA's recent enforcement actions represent an entirely new interpretation of the RCRA requirements," and that "[s]uch changes in regulatory interpretation and policy should be addressed on their merits before enforcement actions are undertaken."*fn4 AAM therefore requested that "EPA place a 'hold' on RCRA enforcement proceedings relating to automotive solvent recovery systems." Letters from the governors of several states and their environmental officials also expressed concern about the Cotsworth interpretation and its application at specific plants.
In response to AAM's letters and inquires from two automobile manufacturers, Eric V. Schaeffer, the Director of Regulatory Enforcement,*fn5 wrote on August 31, 2001, that the applicability of Subparts J and BB to piping systems conveying solvents from spray painting units "is quite clear." The Schaeffer letter advised that EPA "has consistently articulated [this] viewpoint," referencing the RCRA Policy Compendium. Indicating that EPA was willing, if there was data to support AAM's categorical position, to "consider revising the rule in light of [industry's] viewpoint that the requirements offer no environmental benefit," the Schaeffer ...