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Arizona Mining Association v. Jackson

April 22, 2010

ARIZONA MINING ASSOCIATION, ET AL, PLAINTIFFS,
v.
LISA P. JACKSON, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL, DEFENDANTS.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The plaintiffs, Arizona Mining Association, New Mexico Mining Association, and Phelps Dodge Bagdad, Inc., bring this action against the defendants, the United States Environmental Protection Agency ("EPA"), and its Administrator, Lisa P. Jackson*fn1 , seeking review of final action by the defendants under the Administrative Procedure Act, 5 U.S.C. § 702 (2006) ("APA"). First Amended Complaint ("Am. Compl.") ¶ 1. The plaintiffs seek an order "holding unlawful, vacating, and setting aside" certain actions taken by the defendants under the Emergency Planning and Community Right-To-Know Act, 42 U.S.C. § 11023 (2006) ("Right-To-Know Act" or "the Act"). Am. Compl. ¶ 1. This matter is currently before the Court on the plaintiffs' motion to compel the EPA to produce and file with the Court the administrative record in this case. See Plaintiffs' Motion to Compel Production of the Administrative Record. The EPA opposes the plaintiffs' motion, and cross-moves to dismiss the plaintiffs' first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn2 See Opposition to Plaintiffs' Motion to Compel Production of the Administrative Record and Cross-Motion to Dismiss First Amended Complaint ("Defs.' Opp'n"). For the following reasons, the Court must deny the plaintiffs' motion and grant the EPA's cross-motion.

I. BACKGROUND

"Plaintiff Arizona Mining Association . . . is a non-profit business league, whose members include companies engaged in exploration and mining activities in Arizona." Am. Compl. ¶ 4. "Plaintiff New Mexico Mining Association . . . is a trade association whose members include companies that explore, produce, and refine metals, coal and industrial materials." Id. ¶ 6. "Plaintiff Phelps Dodge Bagdad, Inc. . . . is engaged in the business of copper mining."*fn3 Id. ¶ 8. According to the plaintiffs, their member companies are required to comply with the "Toxic Release Inventory" ("TR Inventory") reporting requirements set forth in the Right-To-Know Act. Id. ¶¶ 5, 7, 8. The Act requires certain industrial facilities to complete a toxic chemical release form for certain toxic chemicals that are "manufactured, processed, or otherwise used" in quantities exceeding designated thresholds. 28 U.S.C. § 11023(a). The Act defines "manufacture" as "to produce, prepare, import, or compound a toxic chemical." 28 U.S.C. § 11023(b)(1)(C)(i). It defines "process" as "the preparation of a toxic chemical, after its manufacture, for distribution in commerce . . ." 28 U.S.C. § 11023(b)(1)(C)(ii).

The EPA promulgated a final rule in 1988 to implement the TR Inventory reporting requirements. 40 C.F.R. § 372 (2009) ("the 1988 Rule"). It adopted as part of the rule the statutory definition of "manufacture" in its entirety, and added that the term [m]anufacture also applies to a toxic chemical that is produced coincidentally during the manufacture, processing, use, or disposal of another chemical or mixture of chemicals, including a toxic chemical that is separated from that other chemical or mixture of chemicals as a byproduct, and a toxic chemical that remains in that other chemical or mixture of chemicals as an impurity.

40 C.F.R. § 372.3.

In the preamble to the 1988 Rule, the EPA explained that "[this] proposed rule's approach was intended to cover those situations in which a listed toxic chemical is created (intentionally or unintentionally) and then passed on in commerce or disposed of, but never otherwise accounted for." Toxic Chemical Release Reporting; Community Right-to-Know, 53 Fed. Reg. 4500, 4504 (Feb. 16, 1988) (codified at 40 C.F.R. pt. 372). The plaintiffs allege that this explanation limits the EPA's definition of "manufacture" to the "'creation' of chemicals." Am. Compl. ¶ 13.

The 1988 Rule also contained a de minimis exemption which permitted covered facilities to disregard certain de minimis quantities of toxic chemicals "when determining whether an applicable threshold has been met under § 372.25 or determining the amount of release to be reported under § 372.30." 40 C.F.R. § 372.38(a) (2009). The de minimisexemption applies if "a toxic chemical is present in a mixture of chemicals at a covered facility and the toxic chemical is in a concentration in the mixture which is below 1 percent of the mixture, or 0.1 percent of the mixture in the case of a toxic chemical which is a carcinogen . . . ." Id. The rule defines "mixture" as any combination of two or more chemicals, if the combination is not, in whole or in part, the result of a chemical reaction. However, if the combination was produced by a chemical reaction but could have been produced without a chemical reaction, it is also treated as a mixture. A mixture also includes any combination which consists of a chemical and associated impurities.

Id. at § 372.3.

The plaintiffs allege that metal mining facilities were not subject to the TR Inventory reporting requirements under the 1988 Rule. Am. Compl. ¶ 15. However, in 1997, the EPA promulgated a second final rule subjecting metal mining facilities to the TR Inventory reporting requirements. 62 Fed. Reg. 23834, 23857 (May 1, 1997) (codified at 40 C.F.R. pt. 372) ("the 1997 Rule"). The preamble to the 1997 Rule set forth the following interpretation of the term "manufacture":

'Manufacture' of a specific listed toxic chemical includes its production. [The] EPA interprets 'production' to include creation. Production of that listed chemical may occur naturally, or by industrial process. Metals contained in ores are produced by natural processes. Consequently, [Right-To-Know Act] section 313 chemicals which exist in nature have been 'manufactured' at some point, as defined under [Right-To-Know Act] section 313.

Id.

The EPA then concluded that extraction and beneficiation of naturally occurring toxic chemicals amounts to "processing" of those chemicals under section 313 of the Act:

The preparation of toxic chemicals contained in the ore for distribution in commerce occurs after it has been 'manufactured' (i.e., produced). The preparation of that [Right-To-Know Act] section 313 toxic chemical involves its separation from its natural state. Therefore, the extraction for distribution in commerce of the toxic chemical is 'processing' under [Right-To-Know Act] section 313. Other activities, such as beneficiation, are also processing under [Right-To-Know Act] section 313 because the listed toxic chemical is being further prepared for distribution in commerce.

Id.

The mining industry challenged the EPA's definition of "manufacture" in this and a second federal district court. See Barrick Goldstrike Mines, Inc. v. Whitman, 260 F. Supp. 2d 28 (D.D.C. 2003); Nat'l Mining Ass'n v. Browner, No. Civ. A. 97 N 2665, 2001 WL 1886840 (D. Colo. Jan. 16, 2001). In National Mining, the National Mining Association, on behalf of its members,*fn4 challenged the EPA's interpretation of the terms "manufacture" and "process" as applied to ore extraction and beneficiation. National Mining, 2001 WL 1886840, at *6. The court determined that "[b]ecause naturally occurring undisturbed ores are not 'manufactured' within the meaning of The Right-to-Know Act the extraction and ...


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