197 F.3d 543 (D.C. Cir. 1999)
Molycorp, Inc.,Petitionerv.U.S. Environmental Protection Agency, RespondentLead Industries Association, Inc., et al., Intervenors
No. 98-1400
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 29, 1999Decided December 17, 1999

On Petition for Review of an Order of the U.S. Environmental Protection Agency
James L. Meeder argued the cause for petitioner. With him  on the briefs was Robert D. Wyatt.
Daniel R. Dertke, Attorney, U.S. Department of Justice,  argued the cause for respondent. With him on the brief was  Lois J. Schiffer, Assistant Attorney General.  Steven Silverman, Attorney, U.S. Environmental Protection Agency, entered an appearance.
Before:  Silberman, Rogers and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Silberman.
Silberman, Circuit Judge:


1
Molycorp, Inc., petitions for  review of a Technical Background Document issued by the  Environmental Protection Agency under the Resource Conservation and Recovery Act.  Because the document is not a  regulation that we may review, we dismiss the petition for  lack of jurisdiction.

I.

2
Molycorp, Inc., operates a mine in Mountain Pass, California, about 50 miles southwest of Las Vegas in the high desert  of eastern San Bernardino County.  The mine is the only  major domestic source of rare earth metals:  scandium, yttrium, and the lanthanides (elements with atomic numbers 57  through 71, running from lanthanum to lutetium on the  periodic table).  These elements are used as catalysts and  also have applications in such fields as lighting, metallurgy,  ceramics, magnets, and electronics.  The mining process involves excavation from an open pit, followed by crushing,  grinding, and flotation to concentrate bastnasite, a fluorocarbonate ore of rare earth metals.  The concentrated ore is  roasted and then leached with hydrochloric acid, producing  cerium solids (which can be sold after thickening, filtering,  and drying) and lanthanide chlorides (which are subjected to  solvent extraction to separate individual lanthanide elements),  as well as various waste products.


3
This case concerns the application of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6901 et seq., to  Molycorp's operations.  RCRA establishes a comprehensive  scheme for the regulation of the handling and disposal of solid  wastes;  under Subtitle C, it imposes especially stringent  restrictions on hazardous wastes.  But Subtitle C does not  apply to all hazardous wastes.  In 1980, Congress adopted the  Bevill Amendment, which prohibited the EPA from regulating "solid waste from the extraction, beneficiation, and processing of ores and minerals," until it completed a study of  the health and environmental effects of those wastes.  42  U.S.C. § 6921(b)(3)(A)(ii).  After much delay--and some litigation, see generally Solite Corp. v. EPA, 952 F.2d 473 (D.C.  Cir. 1991)--the EPA issued a regulatory determination concluding that wastes uniquely associated with mineral extraction and beneficiation (but not processing) were produced in  large volumes and tended to present a lower risk of human  exposure than industrial waste, so they would not be subject  to Subtitle C regulation.  51 Fed. Reg. 24,496 (1986).  The  determination did not identify specific waste streams that  were exempt, nor did it discuss the difference between beneficiation and processing.  In 1989, the EPA addressed the  Bevill status of processing wastes and determined by rule  that a specific mineral processing waste would be exempt only  if it met "high volume" and "low hazard" criteria.  54 Fed.  Reg. 36,592 (1989).  The rule also defined "beneficiation" in  terms of a list of activities including "crushing, grinding,  washing, dissolution, crystallization, filtration, sorting, sizing,  drying ... and heap, dump, vat, tank and in situ leaching."40 C.F.R. § 261.4(b)(7)(i).


4
This distinction between beneficiation and processing is  significant, because all beneficiation wastes are excluded from  Subtitle C regulation, while processing wastes are excluded  only if they meet the high volume and low hazard criteria.To explain the definition, the EPA noted that beneficiation  tends to produce "high volume solid waste streams that are  essentially earthen in character.  Despite the fact that valuable constituents have been removed, the remaining material  is often physically and chemically similar to the material (ore  or mineral) that entered the operation."  54 Fed. Reg. 36,619  (1989).  Processing, on the other hand, generates "waste  streams that generally bear little or no resemblance to the  materials that entered the operation....  These operations  most often destroy the physical structure of the material,  producing waste streams that are not earthen in character."Id. Under the EPA's definition, beneficiation is completed at  a specific point in time;  after that, all activities are processing.  This means that a step that would otherwise be considered beneficiation will be considered processing if it is performed on material that has already undergone processing.


5
In 1998, the EPA issued a Technical Background Document, Identification and Description of Mineral Processing  Sectors and Waste Streams.  The 1038-page document addresses 49 different mineral commodities.  It discusses each  commodity, explains the steps used in its production, and  describes the wastes generated by its extraction, beneficiation, and processing.


6
At issue is the section of the Technical Background Document discussing the rare earth industry.  The draft version  had described Molycorp's operations as producing some  waste streams from beneficiation and others from processing.  Molycorp submitted comments on the draft, objecting  that the EPA's characterization of some of its operations as  processing was inconsistent with the beneficiation/processing  distinction set out in the 1989 rule.  According to Molycorp,  all of the operations at Mountain Pass are extraction or beneficiation, not processing.  But the final document repeated  the Agency's conclusion that for rare earths, "the beneficiation/processing line occurs between ore preparation and acid  digestion when the ore is vigorously attacked with concentrated acids, resulting in the physical destruction of the ore  structure," and that "all solid wastes arising from [any] operation(s) after the initial mineral processing operation are  considered mineral processing wastes, rather than beneficiation wastes."  It went on to identify specific waste streams  resulting from rare earth processing operations.  Molycorp  petitioned for review, arguing that the document had been  improperly issued without notice and comment, that its conclusions were inconsistent with the Bevill Amendment, and  that the 1989 rule was unlawfully vague insofar as it defined  beneficiation.

II.

7
We begin (and end) by considering whether we have jurisdiction to entertain Molycorp's challenge, and we conclude that we do not for three related but conceptually distinct  reasons.


8
The judicial review provision of RCRA states that "a  petition for review of action of the Administrator in promulgating any regulation, or requirement under this chapter or  denying any petition for the promulgation, amendment or  repeal of any regulation under this chapter may be filed only  in the United States Court of Appeals for the District of  Columbia."  42 U.S.C. § 6976(a)(1).  As Molycorp recognizes,  this statute is not merely a venue provision, requiring that  challenges to final regulations be brought before us rather  than in another court.  It is also a limitation on our jurisdiction:  we may review only final regulations, requirements, and  denials of petitions to promulgate, amend or repeal a regulation.  See American Portland Cement Alliance v. EPA, 101  F.3d 772, 775 (D.C. Cir. 1996).  Petitioner claims that the  document is a regulation.  To determine whether a regulatory action constitutes promulgation of a regulation, we look to  three factors:  (1) the Agency's own characterization of the  action;  (2) whether the action was published in the Federal  Register or the Code of Federal Regulations;  and (3) whether the action has binding effects on private parties or on the  agency.  See Florida Power & Light Co. v. EPA, 145 F.3d  1414, 1418 (D.C. Cir. 1998).  The first two criteria serve to  illuminate the third, for the ultimate focus of the inquiry is  whether the agency action partakes of the fundamental characteristic of a regulation, i.e., that it has the force of law.


9
The document (which was not published in the Federal  Register) states that it "is intended solely to provide information to the public and the regulated community regarding the  wastes that are potentially subject to the requirements of this  title."  This disclaimer, which appears twice in the text,  continues:


10
While the guidance contained in this document may assist the industry, public and federal and state regulators in applying statutory and regulatory requirements of RCRA, the guidance is not a substitute for those legal requirements;  nor is it a regulation itself.  Thus, it does not impose legally-binding requirements on any party ,including EPA, States or the regulated community.


11
The EPA has slightly obscured the non-binding nature of the  document by stating, at the time the draft document was  introduced and again before us, that it would have an "advisory" role in enforcement proceedings.  See 61 Fed. Reg. 2,338,  2,354 (1996).  We take this to mean only, as counsel assured  us at oral argument, that the agency is advising the public as  to its present enforcement inclinations--not that the document itself would be given any weight at all in enforcement  proceedings.


12
Drawing on our cases construing the exceptions to the  APA's notice and comment requirement, Molycorp contends  that the Technical Background Document nevertheless must  be deemed a regulation because it has effected a change in  EPA policy.  Assuming arguen do there was such a change,  this argument is based on a misunderstanding of our cases. We have said that an interpretative rule construing a legislative rule cannot be modified without the notice and comment  procedure that would be required to change the underlying  regulation--otherwise, an agency could easily evade notice  and comment requirements by amending a rule under the  guise of reinterpreting it.  See Paralyzed Veterans of Am. v.  D.C. Arena L.P., 117 F.3d 579, 586 (D.C. Cir. 1997).  But the  document is not an interpretative rule.  As we explained in  Syncor Int'l Corp. v. Shalala,


13
[I]nterpretative rules and policy statements are quite different agency instruments.  An agency policy statement does not seek to impose or elaborate or interpret a legal norm.  It merely represents an agency position with respect to how it will treat--typically enforce--the  governing legal norm.  By issuing a policy statement, an agency simply lets the public know its current enforcement or adjudicatory approach....  The primary distinction between a substantive rule--really any rule--and a general statement of policy, then, turns on whether an agency intends to bind itself to a particular legal position.


14
127 F.3d 90, 94 (D.C. Cir. 1997).  The document does not set  out an interpretation of RCRA or of the EPA's regulations;  it  does not impose obligations on regulated interests or on the  EPA.  It is as the government insists merely a non-binding  statement of the EPA's view of how it plans to regard  particular activities relating to the production of mineral  commodities.  Therefore it is irrelevant whether the EPA has  taken the same position in the past.1


15
A careful examination of petitioner's argument and the  record, moreover, reveals another jurisdictional barrier.  If  Molycorp were correct in contending that EPA unlawfully  changed its 1989 regulation, it first did so back in 1991.  The  Agency at that time wrote a letter to the California Department of Health Services saying that "the second 'leaching'  step in [Molycorp's] operation appears to more closely resemble acid digestion (a mineral processing operation) than it  does a conventional leaching (beneficiation) process," and  identifying "lead filter cake," "iron filter cake," and "waste  zinc contaminated with mercury" as mineral processing  wastes generated at Mountain Pass.  Then in 1992 the EPA  expressed substantially similar views directly to Molycorp's  parent company.  Under Molycorp's theory, those letters  would have been "regulations" subject to judicial review.  Yet  the statute requires that review be sought within ninety days  of the promulgation of the regulation.  See 42 U.S.C.  § 6976(a).  Molycorp's petition would therefore be untimely.


16
If these problems were not enough, Molycorp's petition  suffers from a third jurisdictional shortcoming:  the issue it  presents is not ripe.  The record is less than pellucid in  identifying the specific waste streams actually produced at  Mountain Pass, and oral argument revealed that the parties  disagree about what wastes are produced there.  That uncertainty leaves open the possibility that there ultimately will be no disagreement over the proper regulatory classification of  Molycorp's wastes.  Thus, there does not currently exist a  concrete controversy that is ripe for judicial review.  See  Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 736  (1998).  Nor can it be suggested that denying review now  causes hardship to Molycorp, cf. Abbott Labs. v. Gardner, 387  U.S. 136, 152-53 (1967), because any enforcement proceeding  against it would be based not on the document (which has no  legal effect) but on the underlying 1989 regulation.  Molycorp  is no worse off than it would be had the document not been  issued at all.


17
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18
It is difficult for us to understand why this case was  brought before us at this time.  The petition for review is  dismissed.


19
So ordered.



Notes:


1
 To be sure, as we noted in Syncor, see 127 F.3d at 96, if an  agency took a position in an enforcement proceeding in district  court that was clearly inconsistent with a prior enforcement policy  statement we would not be surprised if a district court's reaction  was unfavorable.


