Environmental Defense Fund, Inc. v. Gorsuch 230 U.S. App. D.C. 8, 713 F.2d 802

Opinion for the Court filed by Senior Circuit Judge FAIRCHILD.

Dissenting opinion filed by Circuit Judge WILKEY.

FAIRCHILD, Senior Circuit Judge.

In each of these consolidated cases petitioner-appellant Environmental Defense Fund (“EDF”) challenges the EPA Administrator’s decision to defer processing operating permits for existing hazardous waste incinerators and storage impoundments under performance standards called for by the Resource Conservation and Recovery Act (“RCRA” or “the Act”), originally enacted October 21, 1976, Pub.L. 94-580, 90 Stat. 2796, and thereafter amended, principally by the Solid Waste Disposal Act Amendments of 1980, Pub.L. 964182, 94 Stat. 2334. See 42 U.S.C.A. §§ 6901-6987 (1977 & Supp.1981).1 After a review of the statutory framework of RCRA and the regulations promulgated under its provisions, we conclude that EPA’s deferral of the permit process amounted to a suspension of a regulation without notice or comment in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 500-576.

I. Background

A. Statutory and Regulatory Framework of RCRA

RCRA calls on EPA to promulgate a comprehensive set of rules regulating the management of hazardous wastes from ^'cradle to grave.” 47 Fed.Reg. 32275 (1982); 46 Fed.Reg. 2803 (1981). Accordingly, RCRA required the • Administrator to promulgate regulations establishing standards for the generation, transportation, treatment, storage, and disposal of hazardous waste within eighteen (18) months of its enactment. See 42 U.S.C. §§ 6922-6924. Centrally important to this litigation is Congress’ call for regulatory standards under 42 U.S.C. § 6924. Section 6924 requires the Administrator to establish “such performance standards, applicable to owners and operators of facilities for treatment, storage or disposal of hazardous waste ... as may be necessary to protect human health and the environment.” 2

*11Individual facilities are required to comply with these performance standards through a permit process established pursuant to 42 U.S.C. § 6925. Section 6925 orders the EPA to promulgate a rule requiring every hazardous waste treatment, storage or disposal facility to apply for and secure a permit from the Administrator as a condition of operation.3 A permit may only be issued if the applicant has complied with disclosure requirements promulgated under § 6925 and performance standards promulgated under § 6924. 42 U.S.C. § 6925(c). Regulations issued under RGRA become effective six (6) months after the “date of their promulgation. 42 U.S.C. § 6930(b).

Recognizing that EPA would be unable to review and issue permits to all existing hazardous waste management facilities by the effective date of the regulations, Congress provided in § 6925(e) that a facility in existence on the date of RCRA’s enactment which has given EPA notice of its activities and made application for a permit is to be treated as though it were operating with a valid permit until its permit application is acted upon.4 42 U.S.C. § 6925(e).

As mentioned, RCRA called on the Administrator to promulgate regulations creating a comprehensive federal waste management system within eighteen (18) months of its enactment — not later than April 1978. 42 U.S.C. §§ 6921-6927. EPA did not issue regulations within this statutory time limit. In the fall of 1978 EDF and others brought suits in District Court for the District of Columbia to require the Administrator “to perform his nondiscre*12tionary duty to promulgate regulations implementing [RCRA].” State of Illinois v. Gorsuch, 530 F.Supp. 337 (D.D.C.1981).5 See 42 U.S.C. § 6972(a)(2) (authorizing “citizen suits” in district court where Administrator failed to perform a non-discretionary duty under RCRA). On January 4, 1979, the district court entered an order setting time limits for the promulgation of the required regulations, including the promulgation of the § 6924 performance standards and the § 6925 permit process for hazardous waste treatment, storage, and disposal facilities.

After numerous postponements, EPA began to comply with the district court’s order. EPA did not, however, issue all the regulations called for by RCRA and the court at the same time; rather, the agency issued the regulations in “phases.” Promulgation of the first phase of the regulations was substantially completed on May 19, 1980. The “Phase I” regulations established the basic structure for RCRA’s system of hazardous waste management. See 45 Fed.Reg. 33066-588 (1980) (codified at 40 C.F.R. Parts 122-124, 260-265). Phase I regulations did not, however, establish the technical performance standards for hazardous waste treatment, storage or disposal facilities required by § 6924. EPA indicated at the time that because of the “complexity” of the issues these standards would be issued in “Phase II” of its promulgation process.6 Id. at 33156-57.

The significance of delaying enactment of § 6924 technical standards is reflected in the regulations’ two-part permit process. Part A of the application requests basic information about an applicant’s hazardous waste management facility including its location, a description of the process used to treat, store or dispose of hazardous waste, and a list of hazardous wastes processed. See 40 C.F.R. § 122.24 (1982). EPA indicated this information would provide it with data needed to establish initial priorities in permitting facilities. 45 Fed.Reg. 33290, 33322 (1980). Part B of the application demands far greater detail in order to insure compliance with § 6924 technical requirements promulgated during Phase II. See 40 C.F.R. § 122.25 (1982).

Prior to the effectiveness of § 6924 standards, existing waste management facilities were only required to submit a Part A application. Further, during this Phase I period, submission of Part A and compliance with basic notification requirements qualified the facility for interim status, and therefore continued operation, under § 6925(e). 40 C.F.R. § 122.21(c) (1982). A facility continues to enjoy interim status until EPA issues § 6924 performance standards applicable to that facility and EPA calls in Part B applications under the newly promulgated standards. Id. Even then, a facility that submits a Part B application will continue in interim status until EPA has taken final action on its application.

For purposes of this litigation it is important to note the distinctly different obligations a facility has under RCRA and its regulations (1) if it has attained interim status, (2) if it has obtained a permit, or (3) if it has accomplished neither (1) nor (2) by failing to submit a Part A or B application when called on to do so.

A facility in the first group is required to comply with interim status standards written to be inexpensive and easily implemented. See 45 Fed.Reg. 33154-258 (codified at 40 C.F.R. Part 265). These standards were not intended to be “the final answer to the long-term environmental problems caused by hazardous waste disposal; they really form the outline of the technical standards ... that are to come.” Id. at 33157. A facility in the second group must comply with § 6924 technical performance stan*13dards.7 See 42 U.S.C. § 6925(c). A facility in the third group must stop operations on the effective date of the regulations requiring a Part A or calling in a Part B permit application. At the end of the first phase of EPA’s promulgation of regulations under RCRA no § 6924 technical standards had been promulgated, no final action was possible on permit applications, and hazardous waste management facilities that had submitted a Part A application were free to continue operating so long as they were in compliance with the minimal restrictions of the interim status standards.

B. Promulgation of § 6924 Standards

After further extensions of time by the court, and opportunity for notice and comment, EPA issued Phase II standards pursuant to § 6924. Among them were performance standards promulgated in January 1981 for the issuance of permits to owners or operators of incinerators8 and storage surface impoundments.9 These regulations, along with others setting standards for tank, pile and container storage facilities, contained effective dates six months later — in July 1981 — as required by 42 U.S.C. § 6930(b).10

A month before the effective date of these new standards, the Administrator wrote to the Office of Management and Budget (“OMB”) concerning EPA’s compliance with Executive Order 12291. This executive order, issued February 17, 1981, sought to insure that regulatory action was based on adequate information and a careful balancing of costs and benefits, principally by requiring that regulations be accompanied by a “Regulatory Impact Analysis” (“RIA”). 46 Fed.Reg. 13193-98 (1981). Section 7 of the order directed that regulations which had been published in final form but which had not yet taken effect be suspended pending preparation of an RIA unless (1) the rule cannot legally be postponed or suspended, or (2) good cause is *14shown why the rule ought to become effective without further delay.

In her letter to OMB, the Administrator indicated both exceptions applied to the regulatory standards for hazardous waste tanks, containers, piles and new waste storage impoundments and incinerators. First, the letter noted that a suspension of the permitting standards might be considered a violation of the court order compelling their promulgation and may, in any event, be a violation of the rulemaking requirements of APA.11 Second, the letter stated that the standards were necessary in order to begin processing permits for needed new facilities and that the regulated community had not objected to their implementation.

The Administrator’s letter indicated, however, that the regulated community had raised more substantial objections to the cost and feasibility of applying the performance standards to existing storage impoundments and incinerators. The letter stated that in response to these objections EPA intended to publish a Federal Register notice proposing to suspend or withdraw performance standards for permitting existing storage impoundments and incinerators, indicating that it felt an immediate suspension of the standards pursuant to Executive Order 12291 would be subject to legal attack. See note 11 supra. Additionally, the letter informed OMB of EPA’s intent to announce in the Federal Register that it would not begin processing permits for existing impoundments or incinerators under the § 6924 standards pending evaluation of their possible suspension.

On July 24, 1981, only a few days after the effective date of the new regulations, EPA issued a notice in the Federal Register announcing its intentions and publishing the letter to OMB. 46 Fed.Reg. 38318 (1981). Five months later EPA published a notice of its proposed rule to suspend the effective dates of the performance standards for permitting existing incinerators and storage impoundments. 46 Fed.Reg. 51407 (1981). At that time EPA again announced its policy “not to call in Part B applications for existing incinerators and surface impoundments” pending a final decision on the proposed suspension. Id. at 51409. EPA indicated that this policy was prompted by a need to establish priorities in processing the applications of over 15,000 existing and an expected 600 new hazardous waste facilities. This figure included the approximate 2,300 incinerators and storage impoundments involved here. The EPA notice stated that it would not “be a prudent allocation of resources to begin processing permits under standards whose effective date may shortly be suspended.” Id.

By refusing to call in Part B permit applications for incinerators and storage impoundments, EPA avoided implementing of the § 6924 standards in two important respects. First, EPA’s decision relieved the owners and operators of incinerators and storage impoundments from having to begin to develop methods of waste management likely to satisfy the § 6924 standards as a step toward submitting a Part B permit application. Second, EPA’s decision indefinitely delayed the time when actual compliance with the § 6924 standards *15would be compelled through final processing of permits.

C. The Present Dispute

In response to EPA’s announcements, EDF returned to the district court in State of Illinois v. Gorsuch, filing a petition for further relief, arguing that EPA’s action (1) put the Administrator in violation of the court’s order to promulgate standards and (2) violated EPA’s duty under RCRA to give effect to performance standards six months after promulgation.

On November 13, 1981, the district court filed a memorandum and order rejecting both arguments.12 As to the first, the court concluded that absent a substantial showing that EPA’s announcement was a bad faith effort to evade the court’s order, the promulgation of the regulations brought the action to a close. As to the second argument, the court found that EPA’s suspension of the implementation of a regulation was a matter subject to review exclusively in the court of appeals, see 42 U.S.C.A. § 6976(a)(1) (1981 Supp.), and, in any event, presented an issue outside the confines of the litigation before the district court.

EDF brings a direct appeal from the district court’s ruling. Although EDF considers the district court the appropriate forum, it filed protective petitions in this court to review the administrator’s decision pursuant to § 6976(a)(1) on the theory that the refusal to process permits amounted in substance to a suspension of the performance standards in violation of RCRA and the rulemaking requirements of APA. The petitions13 and the appeal of the district court’s ruling were consolidated in this court.14

II. Mootness

After oral argument before this court and a year after the decision challenged, EPA issued the following notice with respect to incinerators:

EPA is announcing withdrawal of its proposal to suspend the effective date of the permitting standards for hazardous waste incinerators, as applied to existing facilities, and is ending its policy, announced on October 20, 1981, of postponing requests for Part B permit applications for existing hazardous waste incinerators.

47 Fed.Reg. 27516 (1982). One month later EPA promulgated revised performance standards for surface impoundments entirely superseding the January 1981 standards.15 46 Fed.Reg. 32274 (1982). In the same notice, EPA announced that it would immediately begin to request the submission of permit applications from storage surface impoundments described under the *16old standards, and now subject to the new regulations. Id. at 32318.

EPA suggests that these announcements rendered the present proceedings moot. The agency argues that its actions give EDF the principal relief sought: “namely, the commencement of the permit process for existing incinerators and existing storage surface impoundments.” Supplemental Brief for Administrator, at 2 (footnotes omitted). EDF concedes that EPA’s actions provide much of the relief it had requested,16 but contends in opposition that the controversy over the Administrator’s authority to suspend the permit process remains justiciable because her action is “capable of repetition, yet evading review.” See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). We believe that EDF presents the more persuasive argument.

The Southern Pacific test for survival of a sufficient controversy to prevent a determination of mootness consists of two elements: “(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.” Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975). EPA concedes the existence of the first element. This concession appears warranted by the limited duration of the EPA policy at issue: about a year from announcement in the July 24, 1981 Federal Register to withdrawal in June and July of 1982. Other EPA deferrals or suspensions of RCRA regulations without notice or comment suggest they are characteristically a year or less in duration.17 While it is conceivable that a petition to review brought in the future might be expedited, a short-term deferral or suspension similar to the one at issue in this case is likely to evade the court’s review even under an accelerated procedure.

The presence of the second prong under Weinstein v. Bradford — a reasonable expectation that EDF would be subjected to the same action again — is more uncertain but we think also satisfied here.18 EPA *17argues there is little likelihood the Administrator would again defer the permit process for existing hazardous waste incinerators and storage impoundments. While this assertion may be correct, it supposes too narrow a formulation of EDF’s interest in this litigation and of the nature of this dispute. EDF is a nationally based not-for-profit, public interest corporation formed to promote the protection of human health and the environment. EDF has indicated in its briefs and in its participation in the dispute below and in other litigation,19 an interest in the promulgation and implementation of regulations under RCRA that extends beyond the permit policy for incinerators and storage impoundments. Because of the breadth of its interest, EDF is likely to be party to any future dispute which involves a similar principle. See Montgomery Environmental Coalition v. Costle, 646 F.2d 568, 578-79 (D.C.Cir.1980); Northern Ohio Lung Ass’n v. E.P.A., 572 F.2d 1143, 1147 (6th Cir.1978).

There is also reason to expect that a similar dispute will arise. The issue in this case is not just whether the EPA will again defer the permit process pursuant to standards for incinerators or storage impoundments but whether it is likely to refuse to call in permits under standards for other hazardous waste facilities or — if we accept EDF’s characterization of EPA’s action — to effectively suspend any promulgated RCRA regulation. See Sholly v. United States Nuclear Regulatory Com’n, 651 F.2d 780, 785 (D.C.Cir.1980), vacated and remanded, - U.S. -, 103 S.Ct. 1170, 75 L.Ed.2d 423 (1983). Under this formulation of the issues, EPA’s history of deferrals and suspensions under RCRA,20 along with its conspicuous failure — in its brief or in announcements related to these or other actions — to foreswear future deferrals without notice or comment, sufficiently show such conduct may reasonably be expected to occur again.21

*18III. Appeal From District Court

The district court took jurisdiction in State of Illinois v. Gorsuch pursuant to RCRA’s “citizen suit” provision. 42 U.S.C. § 6972. Section 6972(a) permits “any person [to] commence [in district court] a civil action on his own behalf . .. against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under [RCRA].” EDF sought to order the Administrator to perform her duty to promulgate performance standards for the generation, transportation, treatment, storage and disposal of hazardous waste as required by the Act. Specifically EDF’s complaint asked the court to “enter an order ... directing defendants to comply with the requirements of [RCRA] by promulgating regulations expeditiously” and to “retain jurisdiction of this matter until defendants have promulgated the regulations.” As was mentioned, the district court granted this relief, including ordering the promulgation of the regulations at issue here.

EDF argues that EPA’s decision not to call in permit applications for existing incinerators and storage impoundments under the 1981 standards violates the district court’s order and a non-discretionary duty to give effect to regulations six months after promulgation pursuant to 42 U.S.C. § 6930(b), and that the district court therefore continues to have jurisdiction over the dispute pursuant to the RCRA’s “citizen suit” provision.22 The district court rejected this argument stating:

This is simply a deadline suit, nothing more. The sole purpose of deadline suits is to bring the equitable powers of the

RCRA) and EPA’s history of delay in promulgating and implementing regulations under this and other Acts, however, we think this issue is also properly before us. Court into play to effectuate the declared intentions of Congress.

EDF requested that the Agency be directed to promulgate regulations, the Court directed the Agency to promulgate regulations, and the Agency has done so. In the absence of a substantial threshold showing that the Agency’s subsequent announcement that it would suspend the regulations was a bad-faith effort to evade the Court’s Order, the Court is obliged to conclude that the Agency’s promulgation of the regulations brought this proceeding to a close as to these two regulations. In responding to an action to enforce explicit statutory deadlines, the Court does not undertake a continuing supervision of the Agency’s implementation of its responsibilities after deadlines have been met.

530 F.Supp. at 339.

We agree. The district court ordered EPA to promulgate regulations. Black’s Law Dictionary (5th ed. 1979) defines the term promulgate as “[t]he formal act of announcing a statute or rule of court.” Id. at 1093. EPA made a formal announcement in the Federal Register of its issuance of the regulations in dispute; at least facially this act appears to satisfy the court’s order. Absent evidence that the agency harbored an intent to suspend the regulations at the time of their promulgation,23 the court properly determined that the act it had commanded had been performed. Indeed, EDF’s complaint requested that jurisdiction be retained only until the regulations were promulgated.

EDF nevertheless asserts that implied in the court’s order to promulgate the regulations is the command to make them effec*19tive — or, perhaps, to do nothing to make them ineffective — six (6) months from the date of issuance pursuant to § 6930(b) and the failure to give them practical effect is a violation of the order and EPA’s duty under RCRA. This assertion does not comport with the district court’s interpretation of its order or the plain meaning of the term promulgate. More importantly, it reads into § 6930(b) an affirmative duty that is not there.

Section 6930(b) states that regulations “applicable to the generation, transportation, treatment, storage, or disposal of hazardous waste (including requirements respecting permits for such treatment, storage, or disposal) shall take effect on the date six months after the date of promulgation ..or six months after the date of [their] revision.” 42 U.S.C. § 6930(b). This section puts these regulations into effect upon a date certain by operation of law, and thereby performs an important function. See Natural Resources Defense Council v. U.S.E.P.A., 683 F.2d 752, 762 (3rd Cir.1982) (“without an effective date a rule would be a nullity because it would never require adherence”). But EDF goes too far in asserting that the § 6930(b) language “shall take effect” creates a non-discretionary duty on the part of EPA to perform some additional act to put the regulations into effect. In fact, § 6930(b) expressly provides for the possibility that the effective date may be altered in the event EPA moves to revise the regulations.

The fact that § 6930(b) does not charge EPA with a “duty” to act to give effect to its regulations as promulgated within the meaning of RCRA’s “citizen suit” provision does not mean the agency may alter or suspend the effective date of regulations with impunity; it simply means that the remedy lies in the court of appeals. Section 6976(a)(1) of RCRA, as amended in 1980, provides that “a petition for review of action of the Administrator in promulgating any regulation, or requirement under [RCRA] or denying any petition, for the promulgation, amendment or repeal of any regulation ... may be filed only in the United States Court of Appeals for the District of Columbia.” 42 U.S.C.A. § 6976(a)(1) (Supp.1981) (emphasis added). As we have already suggested and will show, suspension of the permit process as to a class of waste management facilities amounts to a suspension of the effective date of regulation governing that class, and may be reviewed in the court of appeals as the promulgation of a regulation.

The fact that review is within the jurisdiction of this court adds further support to the district court’s conclusion that that court lacked jurisdiction. See Oljato Chapter of Navajo Tribe v. Train, 515 F.2d 654 (D.C.Cir.1975). Oljato involved jurisdictional provisions for district court and appellate court review of EPA action under the Clean Air Act which were very similar to those at issue here. The Oljato court emphasized that even if petitioners’ claim might have fallen within the language of both the district court and court of appeals provisions, “it is well settled that bifurcated jurisdiction between District Court and Court of Appeals over identical litigation is not favored.” Id. at 660. See also Ind. Cosmetic Mfr. v. U.S. Dept, of H.E.W., 574 F.2d 553, 555 n. 2 (D.C.Cir.1978). We similarly conclude with respect to the matter of jurisdiction that EDF’s present claim falls within this court’s exclusive jurisdiction pursuant to § 6927 of RCRA, and affirm the district court’s refusal of further relief.24

*20IV. Petitions for Review

In its petitions for review, EDF argues EPA’s decision not to call in permit applications for incinerators and storage impoundments under the newly promulgated performance standards amounted in substance to a suspension of a regulation. EDF contends that this suspension is a violation of RCRA, is arbitrary and capricious, and is unlawful in the absence of notice and an opportunity for comment. We address the latter contention first.

“Our review of an agency’s procedural compliance with statutory norms is an exacting one.” Natural Resources Defense Council, Inc. v. S.E.C., 606 F.2d 1031, 1048 (D.C.Cir.1979). We are concerned here with EPA’s compliance with the notice and comment requirements of APA, 5 U.S.C. § 553, in deciding not to call in Part B permit applications under newly promulgated regulations for two classes of hazardous waste facilities. A threshold question is whether EPA’s action constitutes a “rule” within the meaning of APA and is subject to its rule-making requirements.25

In order to make this determination, it is important to emphasize again the substantive effect of EPA’s decision not to call in Part B applications for existing incinerator and surface storage impoundment facilities under the newly promulgated § 6924 standards. The § 6924 standards at issue were promulgated after substantial delay and opportunity for comment. Absent EPA’s decision to defer calling in applications, approximately 2,300 existing hazardous waste management facilities would have been required to submit detailed Part B applications describing their operations and detailing procedures taken to insure compliance with the newly effective § 6924 standards. See 40 C.F.R. § 122.25(b)(5) (1982). Failure to submit an application would result in loss of interim status — assuming it was originally attained on submission of a Part A application — and consequently loss of the facility’s right to continue operation. As discussed earlier, initiating this permit process would implement standards by forcing facilities to demonstrate substantial compliance with the § 6924 regulations in order to obtain the permit and, once the permit is issued, by requiring compliance with its terms. EPA’s decision not to call in Part B applications suspended the implementation process and indefinitely relieved incinerator and storage impoundment facilities from having to comply with the § 6924 technical standards; instead, the facilities were allowed to continue operation under the limited restrictions imposed by interim status standards. Viewed in this light, EPA’s decision indefinitely suspended the effective date of the promulgated § 6924 standards for incinerators and surface storage impoundments.26

*21The application of APA rulemaking requirements to an agency action depends on “whether the agency action jeopardizes the rights and interests of parties, for if it does, it must be subject to public comment prior to taking effect.” Batterton v. Marshall, 648 F.2d 694, 708 (D.C.Cir.1980). EPA’s decision not to call in Part B permit applications meets that test and should not have occurred without the benefit of notice or comment by the parties affected, including the general public.

In a case factually similar to the present, the Third Circuit reached a like conclusion. Natural Resources Defense Council v. U.S.E.P.A., 683 F.2d 752 (3rd Cir.1982). In that suit, NRDC sought review of EPA’s indefinite deferral of the effective date of a set of amendments promulgated pursuant to the Clean Water Act. The amendments were promulgated in final form on January 28, 1981 with an effective date of March 30. On March 27, in response to Executive Order 12291, the Administrator published a notice postponing the effective date of the regulations indefinitely. After NRDC filed suit, EPA announced its decision to terminate the indefinite postponement and give effect to most of the regulations in dispute. On direct review of this action, the court concluded EPA’s indefinite suspension of the effective date of the amendments “fit the definition of ‘rule’ ” under APA. Id. at 761. The court stated:

If the effective date were not “part of an agency statement” such that material alterations in that date would be subject to the rulemaking provisions of the APA, it would mean that an agency could guide a future rule through the rulemaking process, promulgate a final rule, and then effectively repeal it, simply by indefinitely postponing its operative date. The APA specifically provides that the repeal of a rule is rulemaking subject to rule-making procedures. 5 U.S.C. § 551(5). Thus, a holding that EPA’s action here was not a rule subject to the rulemaking procedure of the APA would create a contradiction in the statute where there need be no contradiction: the statute would provide that the repeal of a rule requires a rulemaking proceeding, but the agency could (albeit indirectly) repeal a rule simply by eliminating (or indefinitely postponing) its effective date, thereby accomplishing without rulemaking something for which the statute requires a rulemaking proceeding. By treating the indefinite postponement of the effective date as a rule for APA purposes, it is possible to avoid such an anomalous result.

Id. at 762.

The Natural Resources court noted that a similar position was taken by this circuit in Council of the Southern Mountains, Inc. v. Donovan, 653 F.2d 573 (D.C.Cir.1981). In that case, the Department of Labor promulgated regulations “requiring coal operators to equip all miners with self-contained self-rescuers (SCSRs)” by December 21, 1980. Id. at 575. On December 5, 1980, however, the Secretary “deferred implementation of the regulations until June 21, 1981.” Id. In response to petitioner’s claim that this deferral amounted to rulemaking subject to the requirements of APA, the court stated:

Section 553(b)(A) of the APA excepts “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” from the notice- and-comment requirement. Intervenor asserts that the December 5 order fell within this exception since it was an “interpretative rule.” The Secretary’s published notice, however, did not invoke § 553(b)(A) and Government counsel told this court at oral argument that the order deferring implementation of the SCSR regulations “would most likely be considered a substantive rule” since it “did affect the rights of the parties involved.” We agree with the Government that the December 5 order was a substantive rule since, by deferring the requirement that coal operators supply life-saving equip*22ment to miners, it had “ ‘palpable effects’ upon the regulated industry and the public in general.” National Helium Corp. v. Federal Energy Administration, 569 F.2d 1137, 1146 (Em.App.1977).

653 F.2d at 580 n. 28. See also Consumer Energy Council of America v. F.E.R.C., 673 F.2d 425 (D.C.Cir.1982) (revocation of regulation subject to notice and comment requirements under APA).

Natural Resources and Council of the Southern Mountains stand for the proposition that an agency action which has the effect of suspending a duly promulgated regulation is normally subject to APA rule-making requirements. In keeping with these opinions, we hold that an agency decision which effectively suspends the implementation of important and duly promulgated standards for two classes of hazardous waste management facilities constitutes rulemaking subject to notice and comment requirements of 5 U.S.C. § 553.

Both EPA and the intervenors contend that the announcement of permit procedures was a statement of agency policy, not a substantive rule, and as such expressly exempted from the notice and comment requirements of APA.27

[T]he Administrator’s decision to temporarily assign priority to processing permits for new and existing tanks, waste piles and container storage facilities and new surface storage impoundments and incinerators over processing permits for existing surface storage impoundments and incinerators is a statement of policy because it gives advance notice of how the agency will be running the permit program.... The existing regulations have not been altered by this permitting policy. These facilities are still required to submit a Part B permit application under 40 C.F.R. 122.22(a)(2) should EPA or a state director initiate such a request. If EPA believes that in a particular case, it should call up a permit for a particular existing surface impoundment or incinerator, it can do so under the existing regulations. The Administrator’s general policy not to call up permits for these two classes of facilities does not, in fact, bind the Administrator not to do so.

Brief for Administrator, at 33-34 (footnotes omitted); similarly, Brief for Intervenors and Appellees, at 11 n. 5.

While the agency’s characterization of its action may provide “some indication of the nature of the announcement,” Regular Common Carrier Conference v. United States, 628 F.2d 248, 251 (D.C.Cir.1980) (quoting Pacific Gas & Electric Co. v. FPC, 506 F.2d 33, 39 (D.C.Cir.1974)), an announcement is not necessarily a policy statement because the agency has so labeled it. See Chamber of Commerce of United States v. O.S.H.A., 636 F.2d 464, 468 (D.C.Cir.1980). “[I]t is the substance of what the [agency] has purported to do and has done which is decisive.” Id. (quoting Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407, 416, 62 S.Ct. 1194, 1200, 86 L.Ed. 1563 (1942)). We find the substantive effect of EPA’s announcement wholly inconsistent with the “statement of policy” label the agency would assign to it.

Any claim of exemption from APA rulemaking requirements “will be narrowly construed and only reluctantly countenanced.” American Federation of Government Emp. v. Block, 655 F.2d 1153, 1156 (D.C.Cir.1981) (quoting State of New Jersey, Department of Environmental Protection v. E.P.A., 626 F.2d 1038, 1045 (D.C.Cir.1980)). Scrutiny of a claimed exemption should be exacting where an agency seeks, as EPA does here, to “undo all it accom*23plished through its rulemaking without giving all parties an opportunity to comment on the wisdom of repeal.” Consumer Energy Council of America, 673 F.2d at 446. The Third Circuit applied a like degree of scrutiny in Natural Resources.

In this case, the agency, without notice and the opportunity for comment, abrogated rules which had been proposed, which had undergone years of notice and comment procedures, and which had been promulgated, with an effective date, in final form. By postponing the effective date of the amendments, EPA reversed its course of action up to the postponement. That reversal itself constitutes a danger signal. Where the reversal was accomplished without notice and an opportunity for comment, and without any statement by EPA on the impact of that postponement on the statutory scheme pursuant to which the amendments had been promulgated, the reviewing court must scrutinize that action all the more closely to insure that the APA was not violated.

683 F.2d at 760-61 (footnote omitted).

Viewed under strict scrutiny, we cannot accept EPA’s assertion that its decision not to call in Part B permits under § 6924 standards is exempt from APA notice and comment requirements as a “general policy” statement. The “policy” relieved owners and operators of all existing incinerators and storage impoundments from having to submit the Part B applications and thus from having to put their facilities in compliance with duly promulgated regulations. The substance of the decision was exemption of a whole class from prescribed obligations required by law for the protection of the public. See American Bus Ass’n v. United States, 627 F.2d 525 (D.C.Cir.1980) (ICC action lessening regulatory constraints upon motor carriers not a “general policy statement” exempt from APA notice and comment procedures where effect of pronouncement was determinative of issues or rights to which it was addressed).28

V. ConClusion

In an effort to emphasize our exact holding, we summarize our views of this case:

Congress required EPA to promulgate regulations by a date specified. These regulations were required to contain standards for the storage and disposal of hazardous waste, designed to protect the health and safety of the public. The statute was constructed so that fulfillment of the standards would be achieved by requiring permits for operation of facilities. The permits would be obtained by applications showing compliance with the standards, and issuance of permits would follow satisfactory completion of the applications. The particular facilities involved in this case are surface impoundments and incinerators.

EPA belatedly promulgated the regulations under court order and provided therein, as required by Congress, that the regulations would become effective in six (6) months — July 1981. In Phase I of its promulgation program, EPA called for an initial portion of a permit application (Part A). Filing of Part A with respect to a facility existing November 19, 1980 would confer interim status on each applicant. The remainder of the application, which must *24show fulfillment of the § 6924 standards, was designated Part B. Shortly before the July 1981 effective dates, EPA decided not to call in for processing the Part Bs of all existing storage impoundment and incinerator facilities. The decision was publicly announced thereafter.29

The effect of the decision was to postpone the compliance mechanisms as to an entire class of facilities, those incinerators and impoundments already in existence November 19, 1980. Although the decision was not expressed as a suspension of the regulations creating the standards, the effect was exactly that. We hold that this action was in substance the promulgation of a regulation reviewable in this court.30

Because of its substantive effect on the obligations of the owners of existing facilities and on the rights of the public, as prescribed by Congress, the decision as a rule, was not excepted from the requirement of notice and comment, and was invalid at least for the omission of notice and an opportunity for comment. The decision must be vacated. We need not, and do not, reach the further question whether even with notice and an opportunity for comment, EPA could lawfully have postponed the effective date of the regulations.

In No. 81-2295, the judgment is AFFIRMED. In No. 81-2025 and 81-2214, the twice announced decision of the Administrator is VACATED. No costs are allowed to either party in this court.

WILKEY, Circuit Judge,

dissenting:

After oral argument before this court, EPA withdrew its policy of refusing to request permit applications from existing incinerators.1 One month later the agency promulgated revised standards for surface impoundments and announced that it would immediately begin requesting permit applications from these facilities as well.2 Since EDF’s complaint focused on the legality of EPA’s refusal to request permit applications for existing incinerators and surface storage impoundments, the allegedly illegal activity which EDF sought to enjoin has already abated. Thus, an order by this court will have no practical impact on the parties and the issue of mootness arises.

I conclude that it is unlikely that the EPA will once again unilaterally postpone the processing of permit applications and that the case should therefore be dismissed as moot. The majority does not agree. Accordingly, I dissent. The lack of consistent analysis in the cases decided by the lower federal courts leaves the resolution of this issue far from clear, however, hence I feel some obligation to set out my views in detail.

I.The Proper Standard

Under Article III of the United States Constitution, the jurisdiction of the federal courts is limited to those suits presenting a “case or controversy.”3 The doctrine of mootness has therefore been developed to aid the courts in determining when a suit which once presented a live dispute ceases to retain the requisite characteristic of a case or controversy.

However, despite the existence of numerous Supreme Court opinions on the subject,4 *25the law with respect to mootness is not completely settled. Indeed, it is not always clear what standard a court should apply when determining whether a case is moot. Quoting the Supreme Court, this court has stated:

two conditions ... must be satisfied if a federal court is to dismiss a case as moot. First, the court must conclude “with assurance that ‘there is no reasonable expectation ... ’ that the alleged violation will recur” ... second, ... it must be plain that “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.”5

Under this standard the defendant bears the burden of proof.6 However, neither EDF nor EPA discuss this standard, relying instead on what they characterize as an “exception” to the mootness rule. According to the parties, this “exception” exists when two elements combine: “(1) The challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.”7 This “exception” was first recognized in Southern Pacific Terminal Co. v. ICC,8 and is commonly referred to as the “capable of repetition, yet evading review” exception. This court in Sholly v. NRC, stated that it is the plaintiff who must show that the case comes within this exception.9

At first glance, the parties’ arguments appear to be based on the following theoretical construction. Under Davis (n. 5 and n. 6, supra), a case is moot if the defendant shows that there is no reasonable expectation that the alleged violation will recur and that interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. But under Weinstein (n. 4, supra), the ease falls within the capable of repetition yet evading review “exception” if the plaintiff shows that there is a reasonable expectation that this same complaining party will be subjected to the same action again and that the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration.

This theoretical construction is somewhat confusing, however, because it requires the defendant to prove that there is no reasonable expectation that the alleged illegal activity will recur in order to establish that the case is moot and then it requires the plaintiff to prove that there is a reasonable expectation that the allegedly illegal activity will recur in order to bring the case within the exception. The defendant’s ability to prove that the case is moot therefore seems to preclude the court from finding that it is within the exception. This confusion arises only because courts have not *26always carefully explained when the two standards apply.

As exemplified by this case, mootness issues arise most often when circumstances change during the course of the litigation so that granting the requested relief will not serve any purpose. The changed circumstances are of three main types: (1) the plaintiff abandons the claim or settles the suit, (2) the defendant voluntarily abandons the allegedly illegal conduct, or (3) intervening events beyond the control of either party render relief impossible or unnecessary.10 Mootness issues caused by the plaintiff’s activities seldom present a problem.11 However, the courts’ failure expressly to distinguish between the latter two situations has led to the confusion noted above. That confusion can be remedied by examining how each standard applies to each situation.

The test articulated in Davis was developed for situations in which the defendant voluntarily alters his conduct (situation No. 2 above).12 The “capable of repetition yet evading review” test, on the other hand, has generally been applied to situations in which intervening events beyond the control of either party render relief impossible or unnecessary (situation No. 3 above).13 Viewed in that light, the capable of repetition yet evading review doctrine is not an exception to the mootness doctrine,14 but a test used to determine whether a case is truly moot in certain circumstances — i.e., when intervening events beyond the control of either party render relief impossible or unnecessary. The Davis test is a test which aids the same determination in different circumstances — i.e., when the defendant voluntarily abandons the allegedly illegal conduct. The two standards do not conflict, both are standards for mootness (neither is truly an “exception”), they simply apply in different situations.

Of course, the two tests share a common element — both require an inquiry into the likelihood that the plaintiff will again be subject to the allegedly'illegal conduct. Indeed, this appears to be the main concern under both standards. However, it is important to articulate when each standard applies because there are also differences in the two standards, differences which reflect the different concerns which arise in the two situations.

First, the Davis test requires that the defendant prove that there is no reasonable expectation that the allegedly illegal activity will recur.15 Under the “capable of repetition yet evading review” test., on the other hand, the plaintiff is required to show that there is a reasonable expectation that he *27will be subject to the same action again.16 Placing the burden on the defendant makes sense when the defendant has voluntarily altered his conduct (situation No. 2). On the other hand, it would be somewhat unfair to place that burden on the defendant in situation No. 3 because it is the plaintiff who is seeking relief and the defendant has done nothing to avoid it.

The other primary difference in the two tests — the nature of the second prong — similarly reflects differences in the two situations. Under the second prong of Davis, the defendant is required to show that the effects of his allegedly illegal activity have been “irrevocably eradicated,”17 while under the second prong of the “capable of repetition yet evading review” test the court considers whether the challenged activity is in its duration too short to be fully litigated prior to its cessation or expiration.18 The second prong of the Davis test makes sense in the context of situation No. 2 because without it a defendant could injure a plaintiff, cease the allegedly illegal activity when challenged, and avoid responsibility for any continuing injury. Similarly, the second prong of the “capable of repetition yet evading review” test makes sense in the context of situation No. 3. If the intervening events over which neither party has control will by their nature occur before judicial review is terminated, it then seems fair to hear the case at the present time. Applying the duration requirement to situation No. 2 does not make sense, however, because in that situation the defendant controls the duration of the challenged activity. If the duration requirement applied to situation No. 2, the defendant could determine whether to moot the case.

In sum, there are two basic tests for determining mootness; neither is properly an “exception.” Each test applies in a different set of circumstances.19 Thus, when the question of mootness arises the court’s first inquiry should be why the circumstances have changed. The answer to that question then determines who has the burden of proof on the mootness issue and what standard applies.

II. Application of the Proper Standard

Applying the approach outlined above, I note first that the allegedly illegal activity abated in the present case because EPA (the defendant) voluntarily terminated its policy of not requiring permit applications for existing incinerators and surface storage impoundments. Thus, the correct standard is the one articulated in Davis, not, as the parties argue, the capable of repetition yet evading review standard.

As noted earlier, under Davis, the case is moot if the defendant shows (1) that there is no reasonable expectation that the alleged violation will recur and (2) that interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. I conclude that defendant has met this burden.

The determination of whether there is a reasonable expectation that the alleged violation will recur depends largely on how the alleged violation or the allegedly illegal activity is characterized. This is the point on which the majority and I most radically diverge. The majority accepts EDF’s asser*28tion that the present suit is a challenge to EPA’s power to “suspend any promulgated RCRA regulation.”20 I, on the other hand, conclude that the present suit is more narrowly focused. In my opinion, the issue presented is the legality of EPA’s decision not to process permit applications for existing incinerators and surface storage impoundments.

The majority’s characterization of the allegedly illegal activity is unacceptable to me primarily because it assumes the issue being decided. Under the majority’s resolution of this case, the legality of EPA’s actions turns on whether its decision to defer the processing of permits under section 6925 was in reality a suspension of the regulations it promulgated under section 6924. EDF claims that it is and that accordingly notice and comment should have been provided. EPA, on the other hand, claims that its deferral of the permitting process does not affect the validity of the regulations under section 6924 and that accordingly its decision was a general statement of policy for which notice and comment was not needed. Thus, the majority’s characterization of the activity being challenged decides the merits — -if EPA suspended the regulations, notice and comment probably was required.21 The real issue before the court is whether the deferral of the permit process suspended the regulations. Thus, the allegedly illegal activity which EDF challenges is the deferral of the permit process which it claims is illegal because it effectively suspended the regulations. I would therefore limit our mootness consideration to whether there is a reasonable expectation that the EPA will again defer the permitting process. I conclude that there is not.

The present case in this respect is very much like Davis in which the “unique circumstances” that caused the defendant to engage in the allegedly illegal activity in the first place “are no longer present, and are unlikely to recur.”22 EPA deferred processing permits for existing incinerators and storage surface impoundments because of its tremendous workload, which resulted from having to process nearly 15,000 permits at once because new regulations had been promulgated for all facilities. To further complicate the problem the standards under which the permits for existing surface storage impoundments were to be processed were under review by the EPA. It is unlikely that Congress will again pass a new statute requiring wholesale changes and that EPA would at the same time decide to reevaluate those standards immediately after they were promulgated, so it is unlikely that the EPA will again defer the processing of permits. Thus, the first prong of Davis is met.-

The second Davis prong is, in my opinion, also met. Since EDF has not claimed that the challenged policy gave rise to any claim for damages, the EPA’s decision to begin processing permits completely eliminated any harm that might have been caused by the prior policy. This case is not like Doe v. Harris,23 in which the plaintiff alleged a continuing harm caused by the threat that the defendant would return to his earlier conduct.24 The EDF complains only of the effect of the policy when it is in force. Thus, because the harm has been completely eradicated and because I believe that *29there is no reasonable expectation that the circumstances giving rise to this suit will recur, I would hold that the case is moot.