1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_______________________________________

 )

ARIZONA MINING ASSOCIATION, et al, )

)

Plaintiffs, )

)

v. ) Civil Action No. 07-1054 (RBW)

)

LISA P. JACKSON, ADMINISTRATOR, ) 

UNITED STATES ENVIRONMENTAL )

PROTECTION AGENCY, et al, )

 )

Defendants. )

_______________________________________)

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. Jackson1

 1 The plaintiffs substituted Jackson for Stephen L. Johnson, the former Administrator of EPA, in their First 

Amended Complaint. Am. Compl. ¶ 1.

, 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) (“RightTo-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 
2

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).

2

I. BACKGROUND

 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. 

“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.”3

 2 The Court also considered the following documents in resolving these motions: Memorandum of Points and 

Authorities in Support of Plaintiffs' Motion to Compel Production of the Administrative Record (Pls.’ Mem. I); 

Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendants’ Cross-Motion to Dismiss First 

Amendment Complaint (“Pls.’ Mem. II”); and Reply in Support of Defendants’ Motion to Dismiss First Amended 

Complaint (“Defs.’ Rep.”).

 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). 

3 The plaintiffs contend that Plaintiff Phelps Dodge Bagdad, Inc. has undergone a name change since this action was 

filed, and is now known as “Freeport-McMoRan Bagdad, Inc.” Pls.’ Mem. II at 3 n. 2.
3

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 minimis exemption 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 
4

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.
5

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,

4

Plaintiffs’ request is granted to the extent that plaintiffs seek an 

order from this court setting aside [the] EPA’s definition and 

interpretation of the terms “process” and “manufacture” as 

including extraction and beneficiation. The EPA’s definition and 

interpretation are hereby set aside and defendants are enjoined 

from enforcing those definitions.

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 beneficiation thereof cannot 

constitute processing.” Id. at *7. The court’s accompanying order, however, set aside the EPA’s 

interpretation of both “manufacture” and “process”:

Id. at *10.

The EPA sought clarification of the court’s order, arguing that the court improperly set 

aside the EPA’s definition of the term “manufacture” as including extraction and beneficiation 

because the issue was not presented to the court and the holding was inconsistent with the rest of 

the opinion. Id. at *12. The court agreed and modified its order to read: “Defendants’ definition 

and interpretation of the term ‘process’ as including the extraction and beneficiation of naturally 

occurring, undisturbed ores is hereby set aside and defendants are enjoined from enforcing that 

 4 The EPA asserts that Arizona Mining Association and New Mexico Mining Association, both plaintiffs in this 

case, are members of the National Mining Association. Defs.’ Opp’n at 4.
6

definition.” Id. However, the court did not address the issue of “whether the term ‘manufacture’ 

includes extraction and beneficiation activities.” Id.

Following the court’s order of clarification, the National Mining Association’s counsel 

sent two letters to the EPA setting forth its understanding of the TR Inventory reporting 

obligations of mining facilities in light of the court’s decision in National Mining. See Defs.' 

Opp'n, Ex. D at 6-7. The EPA responded to the National Mining Association’s requests in letters 

dated June 14, 2001 (“the June 14 letter”) and June 28, 2001 (“the June 28 letter”). Pls.’ Mem. I, 

Ex. 6; id., Ex. 7. In the June 14 letter, the EPA sought to clarify the court’s order in National 

Mining, stating that 

[t]he Court’s order only addresses [the] EPA’s interpretation that 

undisturbed ores had been ‘manufactured’ by natural forces, and 

that, therefore, the extraction and beneficiation of those ores 

constituted the ‘processing’ of the toxic chemicals contained in 

that ore. It is this interpretation alone that the Court set aside, and 

of which [the EPA] chose not to seek reconsideration.

 

Pls.’ Mem. I, Ex. 6 at 2. The EPA went on to explain that “[i]n its original opinion, the Court 

explicitly declined to reach the question of whether manufacturing that occurs during the course 

of extraction and beneficiation activities is a threshold activity. This is distinct from whether the 

extraction and beneficiation activities themselves constitute a particular threshold activity . . . .” 

Id. The June 14 letter asserts that, in light of the court’s order of clarification in National 

Mining, “facilities must continue to consider toward their manufacturing thresholds any toxic 

chemicals generated during extraction and beneficiation that were not present in the naturally 

occurring, undisturbed ores.” Id. Finally, the EPA noted that 

[i]n the near future [the EPA] intends to initiate rulemaking to 

adopt a revised interpretation that will allocate extraction and 

beneficiation activities between these two statutory terms. 

However, until this rulemaking is completed, [the] EPA will not 

definitively resolve whether a particular activity is best 
7

characterized as ‘manufacturing’ or as ‘processing.’ For now, 

individual facilities will remain responsible for determining 

whether their preparation of the toxic chemicals in the ore is better 

characterized as ‘manufacturing’ or ‘processing.’

 

Id. at 3.

The second letter National Mining Association’s counsel sent to the EPA requested

clarification of statements the EPA made in the June 14 letter. See Pls.’ Mem. I, Ex. 7 at 1. The 

June 28 letter “sets out [the] EPA’s understanding of the Court’s Orders and Opinions [in 

National Mining], and their impact on TR [Inventory] reporting.” Id. The EPA also noted that 

the court did not attempt to define the full scope of a mining facility’s TR Inventory reporting 

obligations. Id at 2. Rather, the EPA stated that “the Court only addressed the claims the 

[National Mining Association] raised, which is distinct from the question of whether a facility 

must count towards thresholds, any toxic chemicals created during these activities.” Id. 

The National Mining Association filed a motion in the Colorado district court to modify 

the court’s previous injunction in National Mining. See Defs.’ Opp’n, Ex. D5

The plaintiffs allege that the EPA adopted a new definition of “manufacture” in the June 

14 and June 28 letters. Am. Compl. ¶ 19. The plaintiffs further allege that these letters 

at 1 (National 

Mining Association v. Browner Order and Memorandum of Decision). The National Mining 

Association alleged that the EPA explained in the 1997 rule that extraction and beneficiation 

activities constituted “processing” and not “manufacturing,” id., Ex. D at 14, but the court 

rejected the National Mining Association’s position, holding that EPA was not required to 

engage in formal rulemaking procedures before issuing the June 14 and June 28 letters because 

the letters were "not legislative rules," id., Ex. D at 18. 

 5 Because the defendant did not label its exhibits, the Court has labeled them alphabetically in the order in which 

they were presented to the Court.
8

constitute final agency action under the APA, id. ¶ 20, and that these interpretations are “contrary 

to law.” Id. ¶ 28; see also id. ¶ 39. 

On March 10, 2004, plaintiff Phelps Dodge Bagdad sent an email to the EPA in response 

to the EPA’s inquiry into Phelps Dodge Bagdad’s compliance with the TR Inventory reporting 

requirements. Pls.’ Mem. I, Ex. 9 ("Phelps Dodge Bagdad Letter") at 1. In its email, Phelps 

Dodge Bagdad articulated its view that its copper flotation tailings constitute a mixture which are 

therefore exempt from TR Inventory reporting requirements under the de minimis exemption. 

Id. Copper flotation tailings, according to the plaintiffs, are “the materials remaining after as 

much copper as technologically and economically feasible has been removed by the flotation 

process. Copper flotation tailings are a combination of naturally occurring chemicals that are not 

the result of any chemical reaction.” Am. Compl. ¶ 30. The EPA responded to Phelps Dodge 

Bagdad’s position in a letter dated August 4, 2004. Pls.’ Mem. I, Ex. 9. The EPA explained its 

position as follows:

Because the tailings at [Phelps Dodge Bagdad] are separated from 

a mixture, toxic chemicals in the tailings are ineligible for the de 

minimis exemption. A mixture is defined to include any 

combination which consists of a chemical and associated 

impurities. [The] EPA’s regulations draw a distinction between a 

toxic chemical impurity that remains in that other chemical or 

mixture of chemicals and a byproduct that is separated from that 

other chemical or mixture of chemicals. Therefore, “mixture” 

cannot be read to include “byproducts” or other toxic chemicals 

that are separated from a mixture. . . . As toxic chemicals that are 

separated from the original mixture, the toxic chemicals in [Phelps 

Dodge Bagdad]’s tailings are no longer “present in a mixture” and 

therefore are byproducts which are not eligible for the de minimis

exemption.

Id. at 2 (citations omitted).

The plaintiffs now allege that the EPA’s position in the Phelps Dodge Bagdad letter is 

inconsistent with the 1988 Rule. Am. Compl. ¶ 33, 35. The plaintiffs further allege that the 
9

letter constitutes reviewable final agency action under the APA, id. ¶ 32, and that the EPA’s 

position in the Phelps Dodge Bagdad letter was adopted without prior notice and opportunity to 

comment. Id. ¶¶ 33, 35. 

II. LEGAL ANALYSIS

The EPA argues that the Court should dismiss all of the plaintiffs’ claims because the 

three challenged letters are not reviewable final agency actions within the meaning of the APA. 

Defs.’ Opp’n at 15. In response, the plaintiffs argue that “[the EPA] can make these claims with 

a straight face only by completely ignoring and declining to address critical record material. . . . 

[which makes] clear that the [EPA] interpretations that plaintiffs challenge are at significant 

variance either with the 1988 and 1997 TR Inventory rules or with prior, definitive [EPA] 

interpretations of those rules.” Pls.’ Mem. II at 3. Moreover, the plaintiffs argue that the “EPA 

communicated the challenged interpretations in a manner that leaves no doubt that they are [the] 

EPA’s final word on the subject, short of an enforcement action.” Id. For the following reasons, 

the Court finds that the EPA has the stronger position.

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether the 

plaintiff has properly stated a claim upon which relief may be granted. Woodruff v. DiMario, 

197 F.R.D. 191, 193 (D.D.C. 2000). In the context of the APA, judicial review is limited to 

“[a]gency action made reviewable by statute and final agency action for which there is no other 

adequate remedy in a court.” 5 U.S.C. § 704 (2006). Two conditions must be satisfied for an 

agency action to be considered “final”: “First, the action must mark the consummation of the 

agency’s decisionmaking process – it must not be of a merely tentative or interlocutory nature. 

And second, the action must be one by which rights and obligations have been determined, or 

from which legal consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) 
10

(citations omitted). In other words, “[t]he agency must have made up its mind, and its decision 

must have inflicted an actual, concrete injury upon the party seeking judicial review.” AT&T v. 

EEOC, 270 F.3d 973, 975 (D.C. Cir. 2001) (citations omitted). Moreover, in this Circuit, an 

agency’s restatement of an established interpretation is not reviewable final agency action. See

Indep. Equip. Dealers Ass’n v. EPA, 372 F.3d 420, 428 (D.C. Cir. 2004) (holding that an EPA 

letter was not reviewable final agency action because the letter “tread no new ground” and “left 

the world just as it found it”); see also Gen. Motors Corp. v. EPA, 363 F.3d 442, 449 (D.C. Cir. 

2004) (holding that EPA letters were not reviewable final agency actions because the letters 

“reflect neither a new interpretation nor a new policy”). Thus, the EPA’s letters that are the 

subject of this litigation are reviewable final agency actions only if the EPA adopted in the letters 

a new interpretation of any of the terms challenged by the plaintiffs. If the EPA’s letters are 

reviewable final agency actions, the Court must, to the extent a different position has been 

articulated, 

(2) hold unlawful and set aside agency action, findings, and 

conclusions found to be 

(C) in excess of statutory jurisdiction, authority, or 

limitations, or short of statutory right; [or] 

(D) without observance of procedure required by law.

 

5 U.S.C. § 706(2)(C)-(D).

In Independent Equipment Dealers Ass'n, a case relied upon by the EPA, the Court held 

that an EPA letter which “tread no new ground” did not constitute an agency “rule” reviewable 

under the APA because it “[could not] be fairly described as implementing, interpreting, or 
11

prescribing law or policy.”6

the EPA Letter merely restated in an abstract setting – for the 

umpteenth time – [the] EPA’s longstanding interpretation of the 

Part 89 certificate of conformity regulations. The Letter neither 

announced a new interpretation of the regulations nor effected a 

change in the regulations themselves. The Letter was purely 

informational in nature; it imposed no obligations and denied no 

relief. Compelling no one to do anything, the letter had no binding 

effect whatsoever – not on the agency and not on the regulated 

community.

 372 F.3d at 428. In that case, the Independent Equipment Dealers 

Association ("IEDA") wrote to the EPA seeking the EPA’s view on a regulation pertaining to an 

emission control information labeling program for “nonroad engines”. Id. at 424. In the letter, 

the IEDA stated its own view of the regulation, id., just as the National Mining Association did 

here. The EPA responded that it did not concur with the IEDA’s interpretation of the regulation, 

and reiterated its own longstanding interpretation of the regulation. Id. The Court reached its 

conclusion based on findings that 

Id. at 427.

The District of Columbia Circuit reached a similar result in General Motors Corp. v. 

EPA, where the Court held that the EPA letters did not constitute reviewable final agency action

because it did not “impose[] new requirements on regulated parties or exclusively guide[ the] 

EPA’s subsequent enforcement activities.” 363 F.3d at 451. General Motors had challenged the 

EPA’s interpretation that automobile manufacturing paint purge solvents were “solid waste”

upon leaving the spray painting unit under the Resource Conservation and Recovery Act 

(“RCRA”). Id. at 445. The Court explained that the letters

 6 Although the Independent Equipment Dealers Ass'n only challenged the EPA letter under the Clean Air Act, the 

Court explained that the term “final agency action” in the Clean Air Act is synonymous with the term “final agency 

action” as used in the APA. Indep. Equip. Dealers Ass’n, 372 F.3d at 428.
12

neither mark the consummation of [the] EPA’s decisionmaking 

process nor impose new substantive rights or obligations on field 

personnel, the States, or third parties. Rather, the letters were part 

of the ongoing dialogue initiated by the industry about [the] EPA’s 

nascent enforcement actions at certain automobile manufacturing 

plants that were based on the regulatory interpretation in the 

RCRA Policy Compendium.

Id. at 450 (citations omitted). 

A. The Plaintiffs’ Challenges to the EPA’s Interpretation of the Term “Manufacture”

The plaintiffs allege that the EPA adopted a new interpretation of the term “manufacture” 

in the June 14 and June 28 letters. Am. Compl. ¶ 19; see also Pls.' Mem. I, Exs. 6, 7. They 

allege that the 1988 and 1997 rules promulgated by the EPA limited the definition of 

“manufacture” to the “creation” of toxic chemicals, while the June 14 and June 28 letters do not 

so limit the term. Am. Compl. ¶¶ 13, 15, 16, 19. The plaintiffs further allege that the EPA’s 

“new interpretation is not tentative.” Pls.’ Mem. II at 5. Finally, the plaintiffs allege that the 

EPA adopted its new interpretation of the term “manufacture” without prior notice and 

opportunity to comment, Am. Compl. ¶¶ 19, 22, and that the new interpretation is contrary to 

law. Id. ¶ 28. The EPA, however, maintains that its statements in the letters are consistent with 

the interpretation of the term “manufacture” set forth in the 1988 and 1997 Rules, and 

accordingly are not judicially reviewable final agency actions. Defs.’ Opp’n at 17. In the 

alternative, the EPA argues that the letters challenged by the plaintiffs are mere policy statements 

or interpretive rules, which are not subject to the rulemaking requirements of the APA. Id. at 23-

24.

When considering a motion to dismiss, “[t]he nonmoving party is entitled to all 

reasonable inferences that can be drawn in her favor.” Artis v. Greenspan, 158 F.3d 1301, 1306 

(D.C. Cir. 1998). Here, even drawing those inferences in the plaintiffs' favor, the EPA’s 
13

statements in the June 14 and June 28 letters do not constitute reviewable final agency action 

because they merely restate the EPA’s existing interpretation of the 1988 and 1997 Rules. The 

preamble to the 1988 Rule that the plaintiffs rely upon explains that the EPA’s interpretation of 

the term “manufacture” “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. at 4504 (Feb. 16, 1988). In a portion of the same preamble not quoted by the 

plaintiffs, the EPA expounds upon its interpretation of the term: “[The] EPA proposed to 

interpret ‘manufacture’ to include coincidental production of a listed toxic chemical as a 

byproduct or impurity during the manufacture, processing, use, or disposal of any other chemical 

substance or mixture.” Id. This interpretation of the term “manufacture” was codified at 40 

C.F.R. § 372.3. Accepting all of the plaintiffs’ allegations as true, the 1988 Rule and its 

preamble are entirely consistent with the EPA’s statements in the June 14 and June 28 letters. In 

the June 14 letter, the EPA makes clear that its conclusion that extraction and beneficiation 

activities can include manufacturing activities specifically pertains to the coincidental 

manufacture of a listed toxic chemical during the course of such activities. As the EPA explains, 

“[t]his is distinct from whether the extraction and beneficiation activities themselves constitute a 

particular threshold activity . . . .” Pls.’ Mem. I, Ex. 6 at 2 (emphasis added). The EPA

reiterated its position in the June 28 letter. Id., Ex. 7 at 2. Contrary to the plaintiffs’ claims, one 

cannot reasonably infer that the EPA’s statements purport to equate extraction and beneficiation 

activities with the definition of “manufacture.” Rather, the statements confirm the EPA’s 

longstanding interpretation that the coincidental manufacture of a toxic chemical during the 

course of extraction and beneficiation amounts to a threshold activity that triggers the TR
14

Inventory reporting requirements, separate and distinct from the extraction and beneficiation 

activities themselves, which also trigger the TR Inventory reporting requirements.

The plaintiffs place great emphasis on the EPA’s statement in the June 14 letter that 

“[f]or now, individual facilities will remain responsible for determining whether their preparation 

of the toxic chemicals in the ore is better characterized as ‘manufacturing’ or ‘processing.’” Id., 

Ex. 6 at 3. They argue that this statement requires facilities to classify their extraction and 

beneficiation activities as either manufacturing or processing, which would be inconsistent with 

the EPA’s prior interpretation of the terms. Pls.’ Mem. II at 5. While at first blush the EPA’s 

statement may be read to endorse an interpretation of the term “manufacture” that includes 

extraction and beneficiation, when read in the context of the entire letter, it is clear that the EPA

intended that facilities only classify as “manufacture” the coincidental manufacture of toxic 

chemicals that may take place in the course of extraction and beneficiation, not the extraction 

and beneficiation activities themselves. See Pls.’ Mem. I, Ex. 6 at 3 (explaining that “[i]f a 

specific toxic chemical is generated through beneficiation activities, then that newly generated 

toxic chemical must be considered toward the facility’s manufacturing threshold for that 

chemical.”).

Finally, the plaintiffs rely upon a variety of other instances where they allege that the 

EPA took a position inconsistent with the position it now takes in the June 14 and June 28 letters. 

Pls.’ Mem. II at 4. In each document, the EPA takes the position that extraction and 

beneficiation activities constitute “processing”, and not “manufacture”. Id. Because the June 14 

and June 28 letters do not alter this position, the plaintiffs’ reliance on those other documents is 

misplaced. Thus, contrary to the plaintiffs’ position, the EPA’s statements in the June 14 and 

June 28 letters “left the world just as [they] found it”. Indep. Equip. Dealers Ass’n, 372 F.3d at 
15

428. Accordingly, the Court concludes that they are not final agency actions under the APA and 

Claims I, II, and V seeking judicial review must be dismissed. See id. 

B. The Plaintiffs’ Challenges to the EPA’s Interpretation that Copper Flotation 

Tailings Are Not Eligible for the De Minimis Exemption

The plaintiffs allege that the EPA’s position in the Phelps Dodge Bagdad letter that 

copper flotation tailings are not eligible for the de minimis exemption is inconsistent with the 

1988 Rule. Am. Compl. ¶ 33, 35; see Pls.' Mem. I, Ex. 9. They allege that copper flotation 

tailings constitute a mixture, the contents of which are eligible for the de minimis exemption. 

Am. Compl. ¶¶ 30, 31. The plaintiffs also allege that the Phelps Dodge Bagdad letter constituted

final agency action. Id. ¶ 32. Alternatively, they allege that the EPA’s adoption of the same 

interpretation in a publication on its Web site constitutes final agency action. Id. Finally, the 

plaintiffs allege that the “EPA’s interpretation is [] a nonobvious and unanticipated reading of the 

regulation that was adopted without prior notice to the public and opportunity to comment.” Id.

¶ 33. In response, the EPA maintains that the Phelps Dodge Bagdad letter is not judicially

reviewable final agency action because it “merely reiterates past agency statements in response 

to specific inquiries from . . . [Phelps Dodge Bagdad].” Defs.’ Opp’n at 19. 

Although the Court recognizes that the Phelps Dodge Bagdad letter gives no indication 

that the EPA’s position contained therein is tentative or interlocutory, the Court concludes that 

the EPA’s position that copper flotation tailings do not qualify for the de minimis exemption is 

not reviewable final agency action because the EPA's position in that letter fails to satisfy the 

second criterion set forth by the Supreme Court in Bennett. See 520 U.S. at 177-78 Construing 

the facts in the light most favorable to the plaintiffs, the plaintiffs have not demonstrated that 
16

they have suffered or will suffer any legal consequences as a result of the EPA’s position in the 

Phelps Dodge Bagdad letter. The Phelps Dodge Bagdad letter is similar in character to the letter 

at issue in Independent Equipment Dealers Ass'n, that the Circuit found to be “purely 

informational in nature.” 372 F.3d at 427. Here, Phelps Dodge Bagdad inquired into its 

obligations under the TR Inventory reporting requirements, just as was the case in Independent 

Equipment Dealers Ass'n. See id. at 421. And, the EPA merely provided a response to Phelps 

Dodge Bagdad's letter. In general, parties suffer no injury so as to render an agency's response 

final for purposes of the APA “when an agency merely expresses its view of what the law 

requires of a party, even if that view is adverse to the party.” See AT&T, 270 F.3d at 975; see 

also DRG Funding Corp. v. HUD, 76 F.3d 1212, 1214 (D.C. Cir. 1996) (“[C]ourts have defined 

a nonfinal agency order as one, for instance, that does not itself adversely affect complainant but 

only affects his rights adversely on the contingency of future administrative action” (citation 

omitted)).

The plaintiffs attempt to characterize the Phelps Dodge Bagdad letter as an enforcement 

letter, Pls.’ Mem. II at 16, but it is not. Although it asks Phelps Dodge Bagdad to “submit any 

necessary reports or revisions within 30 business days from [its] receipt of this letter,” the letter 

stops short of an enforcement action. Pls.' Mem. I, Ex. 9 at 5. The plaintiffs make much of the 

fact that the EPA sent a carbon copy of the Phelps Dodge Bagdad letter to the Enforcement 

Division. Pls.' Mem. II at 16. But the letter neither actually threatened enforcement action, nor 

directed the Enforcement Division to initiate an enforcement action at the end of 3-day period. 

And if the EPA ultimately decided to initiate an enforcement action, Phelps Dodge Bagdad

would certainly have the opportunity to present its arguments to the agency. Cf. CropLife 

America v. EPA, 329 F.3d 876, 882 (D.C. Cir. 2003) (holding that an agency action is 
17

reviewable when the plaintiffs “[would] be afforded no additional opportunity to make the 

arguments to the agency that they [] present[ed] in th[eir] petition [for judicial review]”). Thus, 

the Phelps Dodge Bagdad letter does not have the qualities of reviewable final agency action. At 

most, in responding to what the EPA viewed as Phelps Dodge Bagdad’s flawed interpretation of 

its obligations under the TR Inventory reporting requirements, the Phelps Dodge Bagdad letter 

amounted to a notice of violation, which also does not constitute final agency action. RoysterClark Agribusiness, Inc. v. Johnson, 391 F. Supp. 2d 21, 27 (D.D.C. 2005). Accordingly, the 

Court must conclude that the Phelps Dodge Bagdad letter is not reviewable final agency action 

under the APA and claims III, IV, and V asserting otherwise must be dismissed. 

III. CONCLUSION

For the foregoing reasons, the EPA’s motion to dismiss must be granted.7 Accordingly, 

the plaintiffs’ motion to compel must be denied.8

_____/s/________________

REGGIE B. WALTON

United States District Judge

 7 The plaintiffs also appear to raise a challenge to an EPA interpretation that naturally occurring chemicals that have 

not been manufactured, processed, or otherwise used are subject to TR Inventory reporting requirements. See Am. 

Compl. ¶¶ 24-28. Because the plaintiffs neither developed the position in their first amended complaint nor raised it 

in their memorandum in opposition to the defendants’ motion to dismiss, the Court need not consider it.

8 A Order consistent with this Memorandum Opinion was issued on March 31, 2010.