Wednesday, August 18, 2010

U.S. v. Magnesium Corp. of America

Aug 17: In the U.S. Court of Appeals, Tenth Circuit, Case No. 08-4185. As its name advertises, U.S. Magnesium produces magnesium, though in doing so it also generates various waste byproducts. The lawsuit concerns five of those wastes. The government says that U.S. Magnesium's handling of the wastes must, but hasn't, complied with regulations promulgated under Subtitle C of the Resource Conservation and Recovery Act of 1976 (RCRA). For its part, U.S.Magnesium challenges the premise of the government's suit, arguing that the U.S. EPA exempted the five wastes from Subtitle C's strictures in a prior interpretation of its own regulation. And, U.S. Magnesium says, the Agency cannot change that interpretation now, at least not without first complying with the notice and comment procedures of the Administrative Procedure Act (APA).
    At summary judgment, the district court agreed with U.S. Magnesium and entered judgment in its favor. However, the Appeals Court said, "We must vacate that judgment. Even if we assume with U.S. Magnesium that a definitive regulatory interpretation prohibits an agency from later changing course and issuing a new interpretation without first undergoing notice and comment, that's simply not our case. The only prior EPA interpretation U.S.Magnesium can point to is, at best, a tentative one. Because EPA never previously adopted a definitive interpretation, it remained free, even under the legal precedents on which U.S. Magnesium seeks to rely, to change its mind and issue a new interpretation of its own regulations without assuming notice and comment obligations."
    The Appeals Court concluded, "For purposes of summary, we hold that EPA hasn't previously adopted a definitive interpretation of its 1991 rule. Even under the case law U.S. Magnesium asks us to follow, the Agency is at liberty to adopt without notice and comment a reasonable interpretation of that ambiguous regulation. At least before us, U.S. Magnesium does not dispute that EPA has done so with this litigation. For this reason, we vacate the entry of summary judgment in U.S. Magnesium's favor and remand this matter to the district court. We do not prejudge what, if any, further proceedings may be appropriate in that court in light of and consistent with this opinion."
    Access the complete opinion (click here).

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