ELR Citation: ELR 20023
No(s). 02-1242 (D.C. Cir. Apr 2, 2004)

The court holds that it lacks jurisdiction over an automobile manufacturer's petition for review of U.S. Environmental Protection Agency (EPA) letters regarding enforcement actions based on the Agency's regulatory interpretation that automobile paint purge solvents are "solid waste" under the Resource Conservation and Recovery Act (RCRA). The letters are not not reviewable as final agency action under RCRA §7006(a). The letters neither mark the consummation of EPA's decisionmaking process nor impose new substantive rights or obligations on field personnel, the states, or third parties. The letters were merely preliminary enforcement statements made as part of an informal agency-industry dialogue. Moreover, to the extent that the petition challenges the regulatory interpretation in the letters, the challenge is untimely. The petition was filed long after the 90-day period for judicial review expired following the posting of EPA's interpretation on the RCRA website. And to the extent the petition challenges the application of EPA's regulatory interpretation to the manufacturer's plants, the petition is unripe. The challenge does not present a pure question of law and any hardship suffered by the manufacturer as a result of postponement of judicial review is ameliorated by its opportunity to challenge EPA's regulatory interpretation administratively.

Counsel for Petitioner
John N. Hanson
Beveridge & Diamond
1350 I St. NW, Ste. 700, Washington DC 20005
(202) 789-6000

Counsel for Respondents
Michael A. Cox, Attorney General
Attorney General's Office
1200 6th St., Detroit MI 48226
(313) 256-2557