FAMILIES CONCERNED ABOUT NERVE GAS INCINERATION v. ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT (2002)

On Application for Rehearing

The opinion of this court issued on October 18, 2001, is withdrawn, and the following is substituted therefor.

Families Concerned About Nerve Gas Incineration (“Families”) and Serving Alabama's Future Environment, Inc. (“SAFE”) (hereinafter sometimes referred to jointly as “Families”), appeal from a judgment of the Montgomery Circuit Court affirming a decision by the Alabama Environmental Management Commission (“the Commission”) upholding the issuance of hazardous-waste-incineration permits by the Alabama Department of Environmental Management (“ADEM”).

On June 19, 1997, ADEM issued hazardous-waste facility permits to the United States Department of the Army, Anniston Army Depot;  the United States Department of the Army, program manager for chemical demilitarization;  and Westinghouse Electric Corporation.   The permits authorize the permittees to incinerate chemical weapons, including mustard gas, the nerve agent Sarin (GB), and the nerve agent VX, all stored at the Anniston Army Depot.   Families and SAFE are public-interest citizen groups with members from Calhoun County and other locations in the State organized to ensure that the incineration of the chemical agents at Anniston Army Depot is accomplished in a manner that protects human health, safety, and the environment.   On July 2, 1997, Families filed with the Commission an administrative challenge to the issuance of the permits.   The Commission appointed a hearing officer, who presided over a hearing that included five weeks of testimony and the receipt of voluminous documentary evidence during a three-year period.

On April 20, 2000, the hearing officer presented the Commission with extensive findings of fact, conclusions of law, and a recommendation that the Commission approve the issuance of the permits, without modification.   On June 20, 2000, the Commission adopted the hearing officer's findings, conclusions, and recommendations in their entirety.   On July 19, Families appealed the Commission's decision to the Montgomery Circuit Court, which affirmed the Commission's order on January 19, 2001.   On March 5, 2001, Families appealed to this court, arguing two procedural issues:  (1) that the permits were issued pursuant to an invalid “rule,” in violation of the Alabama Administrative Procedure Act (“Alabama APA”);  and (2) that ADEM had failed to comply with ADEM Rule 335-14-5-.04, which requires permittees to have a contingency plan “designed to eliminate the hazards to human health or the environment from fires, explosions, or unplanned ․ release of hazardous waste ․ constituents to air, soil or surface water.”

Background

In 1994, the United States and 144 other nations signed the Chemical Weapons Convention, which requires the signatory nations to destroy their chemical-weapon stockpiles.   See Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, August 8, 1994, art. IV, para. 6, 32 I.L.M. 800 (entered into force April 29, 1997).   Congress directed the Army to destroy its stockpile of chemical weapons by April 29, 2007.   See 50 U.S.C. § 1521(b)(5) and S.Res. 75, 105th Cong., 143 Cong. Rec. 3651 (1997) (enacted).   The United States' arsenal of chemical weapons was originally located at Johnson Atoll in the Pacific Ocean and at eight different sites in the continental United States.¹  One of those sites is the Anniston Army Depot, where 4.5 million pounds of chemical weapons-approximately 7% of the nation's stockpile-are currently stored.

Section 22-30-12(c), Ala.Code 1975, requires each hazardous-waste permit issued by ADEM to “contain such terms and conditions as the director determines [are] necessary to protect human health or the environment.”   That statutory directive is taken directly from 42 U.S.C. § 6925(c), a part of the Federal Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq.  (“RCRA”), which governs the storage, treatment, and disposal of hazardous wastes.   Pursuant to the RCRA, the Environmental Protection Agency (“EPA”) promulgates regulations and establishes national standards for the management of hazardous wastes.   See 42 U.S.C. §§ 6911, 6912, 6921-25, and 40 C.F.R. § 270.11. The RCRA provides that states may administer and enforce their own hazardous-waste programs, see 42 U.S.C. 6926, and may carry out such programs “in lieu of the federal program,” see 42 U.S.C. § 6926(b), if state program requirements are at least as stringent as the federal requirements, see 40 C.F.R. § 271.   By enacting the Alabama Hazardous Wastes Management and Minimization Act, § 22-30-1 et seq., Ala.Code 1975, the Alabama Legislature intended “that [ADEM] seek and retain authorization to operate the State Hazardous Waste Management Program” and had as a goal “to achieve consistency with the [corresponding] Federal [program].”   See § 22-30-2, Ala.Code 1975.   Pursuant to the statutory mandate of § 22-30-12(c), requiring hazardous-waste permits to “contain such terms and conditions as the director determines [are] necessary to protect human health or the environment,” ADEM required the permittees to submit a contingency plan “designed to eliminate the hazards to human health or the environment from fires, explosions, or unplanned ․ release of hazardous waste ․ constituents to air, soil or surface water.”   Pursuant to the same statutory mandate, ADEM required as a “term or condition of the permit[s]” issued in this case that the emissions from the incineration of the chemical weapons not exceed an “excess-lifetime-cancer-risk factor” of 1 x 10 -5.

The cancer-risk factor expressed in exponential terms means that, as a worst-case scenario, one in 100,000 persons who have been exposed to emissions from the chemical-weapons-incineration process, and who would not otherwise have developed cancer, will develop cancer as a result of the exposure.   The cancer-risk factor is also known as a “screening risk assessment.”   See Sierra Club v. Utah Solid & Hazardous Waste Control Bd., 964 P.2d 335 (Utah Ct.App.1998).   The function of a “screening risk assessment” has been explained as follows:

“[T]he purpose of a screening risk assessment is to ‘provide a conservative estimate of the possible risk of health hazards posed by chemical emissions from a facility’․ ‘[C]onservative’ means the assessment includes ‘numerous assumptions or calculation procedures that result in a broad margin of safety between the calculated risk estimate ․ and the likely risk to human health.’ In other words, the assessment makes assumptions that ‘intentionally overstat [e] what is known to be true.’   Because of this broad safety margin, it is not appropriate to interpret the assessment's risk estimates as ‘true’ or ‘absolute.’   Instead, a screening risk assessment ‘is a method for determining plausible upper limits of risk, not actual probability or risk of harm.’ ”

Sierra Club, 964 P.2d at 341 (emphasis added).   The 10 -5 standard was derived from an EPA document, or “guidance,” issued in 1993 and revised in 1994.   The EPA document is entitled “Implementation Guidance for Conducting Indirect Exposure Analysis at RCRA Combustion Units.”   Under a “Notice” on the first page of the document, the guidance states:

“The recommendations set out in this document are not final Agency action, but are intended solely as guidance.   They are not intended, nor can they be relied upon, to create any rights enforceable by any party in litigation with the United States.   EPA officials may decide to follow the guidance provided in this memorandum, or to act at variance with the guidance, based on an analysis of specific site circumstances.   The Agency also reserves the right to change this guidance.”

I.

Families contends that the cancer-risk factor used to delineate the terms and conditions of the permit is a legislative “rule,” subject to the formal notice-and-comment provisions of § 41-22-4 through -7, Ala.Code 1975.   It maintains that because the 10 -5 standard was not adopted in compliance with formal rulemaking procedures the standard is an invalid rule that, it says, voids the agency action-in this case, the issuance of the permit.

ADEM responds by arguing that the 10 -5 standard is not a “rule”;  instead, ADEM says, it is a “statement of policy ․ made in [a] contested case.”   It is undisputed that a licensing or permit proceeding is a “contested case.”   See § 41-22-3(3), Ala.Code 1975 (stating that a “contested case” is “[a] proceeding, including ․ licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing”).

Section 41-22-3(9), Ala.Code 1975, defines “rule.”   That section states, in pertinent part:

“RULE. Each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy․ The term includes the amendment or repeal of all existing rules, but does not include any of the following:

“․

“d. Determinations, decisions, orders, statements of policy, and interpretations that are made in contested cases.”

We begin our analysis of whether the cancer-risk factor contained in the “EPA Guidance” is a “rule” by looking at six Alabama decisions that have construed § 41-22-3(9).   See Alabama Dep't of Transp. v. Blue Ridge Sand & Gravel, Inc., 718 So.2d 27 (Ala.1998);  Brunson Constr. & Envtl. Servs., Inc. v. City of Prichard, 664 So.2d 885 (Ala.1995);  Ex parte Traylor Nursing Home, Inc., 543 So.2d 1179 (Ala.1988);  Hartford Healthcare, Inc. v. Williams, 751 So.2d 16 (Ala.Civ.App.1999);  Montgomery Rehab. Hosp., Inc. v. State Health Planning Agency, 610 So.2d 403, 406 (Ala.Civ.App.1992);  and Potts v. Bennett, 487 So.2d 919 (Ala.Civ.App.1985).

In Alabama Department of Transportation v. Blue Ridge Sand & Gravel, Inc., our supreme court held that a specification requiring that gravel used in road asphalt have a certain specific gravity was not a rule within the meaning of § 41-22-3(9), but was “simply a term that may be incorporated into a contract between the Department and some other party.”  718 So.2d at 29.   ADEM argues that the specification at issue in Blue Ridge is analogous to the cancer-risk factor at issue here because the cancer-risk factor is a “term or condition” incorporated into the hazardous-waste permit.   Although the two cases do share a superficial similarity, the “term or condition” at issue in Blue Ridge is unlike the cancer-risk factor at issue here because the Blue Ridge specification was objective, was required as a condition of the State's receiving federal highway funds, and called for little or no discretionary policy-making.   In contrast, the 10 -5 cancer-risk “term or condition” is intrinsically a matter of discretionary policy-making.   It answers the policy question, “What level of safety to human health will be demanded in regulating emissions from the incineration of chemical weapons?”   Based on Blue Ridge, a strong argument can be made that the cancer-risk factor is a rule pursuant to § 41-22-3(9) because it “implements ․ or prescribes policy.”

In Brunson Construction & Environmental Services, Inc. v. City of Prichard, the Alabama Supreme Court held that ADEM was required to use formal rulemaking to establish the method by which it calculates a landfill's daily permitted volume.   Families argues that Brunson stands for the proposition that when a permit contains a “term or condition” premised on a standard that has not undergone agency rulemaking, the standard-and therefore the permit incorporating the standard-is invalid.   Although that argument seems compelling, the “standard” at issue in Brunson is very different from the “standard” at issue in this present case.   In Brunson, the volume-limit for state landfills necessarily applied across-the-board, regardless of population density, topography, or meteorological conditions, and it affected future landfill permit applications.   In contrast, the health standard for emissions from a chemical-weapons incinerator is sui generis.   There are no other chemical-weapon disposal sites in the State and, once the munitions stored at the Anniston Army Depot are disposed of, the cancer-risk factor incorporated into these permits is unlikely to apply to other permit applications.   Stated in terms of § 41-22-3(9), the 10 -5 standard is not one of “general applicability.”   Cf. Limerick Ecology Action, Inc. v. United States Nuclear Regulatory Comm'n, 869 F.2d 719 (3d Cir.1989) (holding that, in determining the accident risk for a nuclear generating station, neither the severity of the consequences nor the likelihood of the occurrence of an accident is subject to a generic, across-the-board assessment;  each determination must be site-specific).

In Ex parte Traylor Nursing Home, Inc., our supreme court held that an amendment to the State Health Plan authorizing hospitals to use up to 10 “swing beds”-beds that could be used for either skilled nursing home patients or hospital patients-was a standard of general applicability to all hospitals and, therefore, was subject to formal notice-and-comment rulemaking.   The court explained that, to be a § 41-22-3(9) “rule,” a requirement must be couched in binding, mandatory terms (“must” and “require”) and must concern a matter of “general applicability.”  543 So.2d at 1183-84.

 Applying those criteria to the present case indicates that the cancer-risk factor is not a “rule.”   Although it is not determinative, an agency's characterization of its own standard as nonbinding is persuasive and deserves some weight.   See Alliance for Bio-Integrity v. Shalala, 116 F.Supp.2d 166, 171-72 (D.D.C.2000).  “The ultimate issue is the agency's intent to be bound by its announced standard.”   See Public Citizen v. United States Nuclear Regulatory Comm'n, 940 F.2d 679, 682 (D.C.Cir.1991).   Here, the EPA Guidance from which the 10 -5 standard was derived states that the standard cannot be relied on to create enforceable rights, that it is not binding, and that it is subject to change.

In Hartford Healthcare, Inc. v. Williams, this court held that Medicaid's reversal of its position on the application of a rule pertaining to payment of direct-patient-care cost-incentives to terminating health-care providers was a “rule” within the meaning of 41-22-3(9).   In the present case, there has been no reversal, amendment, or repeal of a former position taken by EPA or ADEM. In fact, the record establishes that ADEM has used the 10 -5 standard for other hazardous-waste permits, and that EPA has used a range of cancer-risk factors, from 1 x 10 -4 (1 in 10,000) to 10 -6 (1 in a million) to satisfy its statutory duty to protect “human health and the environment.”   Hartford Healthcare provides little or no guidance regarding whether the standard at issue here is subject to rulemaking.

In Montgomery Rehabilitation Hospital, Inc. v. State Health Planning Agency, this court held that a revision of a State Health Plan rehabilitation rule, allowing for 26 new physical rehabilitation beds in the Dothan area, was not a “rule” within the meaning of § 41-22-3(9) because it applied to only one geographical area and was not, therefore, a “statement of general applicability.”   Like the holding of Brunson, the holding of Montgomery Rehabilitation Hospital indicates that the standard at issue here is not subject to rulemaking because it is not one of general applicability.

In Potts v. Bennett, this court held that the reason given for denying a liquor license-that the applicant's place of business was near a school or a church-was not required to be the subject of rulemaking.   Noting that a liquor-license proceeding is a “contested case” and that “interpretations” and “statements of policy” made in a contested case fall within an exception to rulemaking, the court stated, “[W]e cannot accept the argument that all licensing criteria and policy must be made through formal rulemaking procedures.”  487 So.2d at 921.   The court continued:

“In federal administrative procedure it has been recognized that an administrative agency is not precluded from announcing new principles in an adjudicatory proceeding.  NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974).   These adjudicatory or contested case proceedings can and do serve as vehicles for the formulation of agency policies applied and announced therein.  NLRB v. Wyman-Gordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969).   The choice between formal rulemaking and ad hoc litigation is left, in large part, to the informed discretion of the administrative agency.  SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947).”

Id. Potts implies that site-specific criteria akin to “policy judgments” made in a contested case are exempt from rulemaking.   Because the cancer-risk factor expresses a policy judgment made in a contested case, Potts does not support Families' argument that the 10 -5 standard was subject to rulemaking.

 Families argues that the 10 -5 cancer-risk factor was not a “determination, decision, order, statement of policy or interpretation ․ made in a contested case” because, it says, ADEM had previously used the same cancer-risk factor in other hazardous-waste permit cases.   In other words, Families contends that in order to have been “made in a contested case,” a statement of policy must have been announced for the first time in that contested case.   We disagree.  Potts states that the administrative agency had long used “improper location” (near a school or a church) and “community standards” as grounds for denying an application for an off-premises beer license.  Potts v. Bennett, 487 So.2d at 919, 921.   See also In re Ash Grove Cement Co., 7 E.A.D. 387 (E.P.A.1997) (stating that “the Combustion Strategy's status as Agency policy does not invalidate either the risk assessment or the permit decisions founded on the risk assessment․ [P]olicy and guidance have a legitimate role in the permitting process ․ [and] may be ‘followed if appropriate in the circumstances of the individual permit’ ”) (quoting In re Allied Signal, Inc. (Frankford Plant), 4 E.A.D. 748, 760 (E.A.B.1993)).

An analysis of our precedents indicates that there is no clear answer as to whether the 10 -5 standard in the EPA Guidance is a “rule” within the meaning of § 41-22-3(9), and is, therefore, subject to rulemaking.   The Commentary to § 41-22-3(9) states that subsection (9) is derived from the Georgia and the Iowa administrative procedure acts.   The definition of “rule” found in Ga.Code Ann. § 50-13-2(6) (1975) is in all relevant particulars almost identical to the definition in § 40-22-3(9).  Section 50-13-2(6) provides:

“ ‘Rule’ means each agency regulation, standard, or statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of any agency.   The term includes the amendment or repeal of a prior rule but does not include the following:

“․

“(D) Statements of policy or interpretations that are made in the decision of a contested case.”

Section 17A.2(11) of the Iowa Code defines “rule” as follows:

“ ‘Rule’ means each agency statement of general applicability that implements, interprets, or prescribes law or policy, or that describes the organization, procedure, or practice requirements of any agency․ The term includes the amendment or repeal of an existing rule, but does not include:

“․

“d. A determination, decision, or order in a contested case.”

Both Georgia and Iowa, whose definitional statutes are the source of § 41-22-3(9), have taken a different approach to deciding whether an agency standard is a “rule” subject to notice-and-comment rulemaking than has Alabama.   The Alabama decisions tend to analyze the facial content of an agency statement and then to pigeonhole the statement either into the § 41-22-3(9) definition or into a § 41-22-3(9)a. through d. exception to the definition-without discussing the purpose or effect of the agency statement.   On the other hand, the Georgia and Iowa decisions tend to analyze an agency statement not only in terms of its facial content, but also in terms of its intent, purpose, and legal and practical effect.   See, e.g., Rielli v. State, 174 Ga.App. 220, 330 S.E.2d 104 (1985);  Georgia State Bd. of Dental Exam'rs v. Daniels, 137 Ga.App. 706, 224 S.E.2d 820 (1976);  Barker v. Iowa Dep't of Transp., 431 N.W.2d 348 (Iowa 1988);  Young Plumbing & Heating Co. v. Iowa Natural Res. Council, 276 N.W.2d 377, 382 (Iowa 1979).

In Rielli v. State, the Georgia court held that a Department of Public Safety regulation directing an arresting officer to write the name of the person performing a chemical test for intoxication on the traffic-citation form was a “mere policy statement which lacks the force and effect of law.”  174 Ga.App. at 222, 330 S.E.2d at 106.   In Daniels, the Georgia court distinguished legislative rules subject to notice-and-comment rulemaking from “interpretive rules” or “general statements of policy,” not subject to rulemaking.  137 Ga.App. at 709, 224 S.E.2d at 822.   The court held that a legal opinion by counsel for the Board of Dental Examiners was an “interpretive rule.”  Id.

In Barker v. Iowa Department of Transportation, the Iowa Supreme Court struck down a rule relating to the “margin of error” for calculating the alcohol content of a driver's blood, breath, or urine because the Department had not formally promulgated the “margin of error” as a “rule.”   What is significant about that case for present purposes is the following comment by the Iowa Administrative Rules Committee, quoted by the court:

“If the department wishes to establish a margin of error as a matter of opinion, it may do so by an ‘interpretive’ rule.   This type of rule does not need specific statutory authority, but it is not law;  such a rule ․ in no way is binding upon a court.   The interpretive rules are entitled to ‘respectful consideration’ by a court, but the court is entitled to substitute its own opinion for that of the agency.”

431 N.W.2d at 350.

In Young Plumbing & Heating Co., the Iowa Natural Resources Council relied on a proposed-but-not-yet-adopted legislative rule to deny a permit for the construction of a building on a flood plain.   Citing § 17A.3(2) of the Iowa Administrative Procedure Act, which provided that “no agency rule is valid ․ against any party for any purpose until the adoption requirements have been met,” the permit applicants argued that reliance on an unpromulgated rule was the equivalent of invoking an invalid rule.   The Supreme Court of Iowa rejected the applicants' argument, holding that an agency standard that forms the basis for a “determination, decision, or order in a contested case” need not undergo rulemaking if the standard is relevant to the facts of the contested case and if the standard is not designed to have binding future effect.   The court explained:

“The essential feature is that the content of the proposed rule is being applied to the particular facts as a relevant factor, and not as a valid rule with the force and effect of law.”

276 N.W.2d at 382-83.   In effect, the Young Plumbing & Heating Co. court embraced the notion of an “interpretive rule”-an agency standard that is relevant but nonbinding.

The distinction between “legislative” rules and “interpretive” rules drawn by the Georgia and Iowa courts accords with a similar distinction under the Federal Administrative Procedure Act. Pursuant to 5 U.S.C. § 553(b)(3)(A), rulemaking does not apply to “interpretive rules” or “general statements of policy.”   See Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87, 115 S.Ct. 1232, 131 L.Ed.2d 106 (1995) (holding that the Secretary of Health and Human Services was not required to follow notice-and-comment rulemaking in issuing a Medicare reimbursement “guideline” because the guideline was an interpretive rule);  Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 157, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) (noting that administrative agencies typically make authoritative statements of policy through interpretive rules or enforcement guidelines).

 Families cites Simpson Tacoma Kraft Co. v. Department of Ecology, 119 Wash.2d 640, 835 P.2d 1030 (1992), for the proposition that when an administrative agency relies on federal guidance for a numeric standard without going through a rulemaking procedure, the standard is invalid.   We find Simpson Tacoma Kraft unpersuasive for two reasons.   First, unlike the Alabama statute defining “rule,” see § 41-22-3(9), Ala.Code 1975, the relevant Washington statute defines “rule” in terms of the consequences of violating an agency-imposed requirement.  Section 34.05.010(15), Wash. Rev.Code, provides that a “rule” is “any agency order, directive, or regulation of general applicability ․ the violation of which subjects a person to a penalty or administrative sanction.”  Simpson Tacoma Kraft, 119 Wash.2d at 647, 835 P.2d at 1034.   If the permittees in this case violate a term or condition of their permits to incinerate the chemical waste, they may incur a penalty pursuant to § 22-30-19(a) and (e)(6), Ala.Code 1975, but the threat of that penalty does not convert the term or condition of their permits into a “rule.”  Section 22-30-19(a), Ala.Code 1975, states that ADEM may take corrective or punitive action

“[w]henever, on the basis of any information, the department determines that any person is in violation of any requirement of this chapter, any rule or regulation promulgated by the department or any permit issued under authority granted by this chapter.”

(Emphasis added.)

Second, we believe that Simpson Tacoma Kraft, a 1992 Washington decision, has been undercut or modified by a later decision of the Washington Supreme Court.   See Budget Rent A Car Corp. v. State Dep't of Licensing, 144 Wash.2d 889, 31 P.3d 1174 (2001).   In Budget, the Washington Department of Licensing determined that a rental car company had incorrectly calculated the size of its rental fleet and that the company owed back taxes and fees.   The rental car company challenged the Department's tax assessment on the ground that the manner in which the Department had determined the number of vehicles in the company's fleet was improperly adopted through adjudication rather than through rulemaking, in violation of the Washington APA. The Washington Supreme Court held that the Department had not created a “rule” by establishing a manner of calculation called the “total purchases” formula.   Instead, the court determined, the Department had “simply stat[ed] its interpretation of the statutory phrase ‘total number of passenger cars in the fleet.’ ”  144 Wash.2d at 896, 31 P.3d at 1178.

 Likewise, in this case, ADEM did not create a “rule” by relying on an EPA Guidance document that incorporated a cancer-risk factor of 10 -5.   ADEM merely interpreted the statutory directive of § 22-30-12(c) (requiring that the hazardous-waste permits “contain such terms and conditions as the director determines [are] necessary to protect human health or the environment”) in light of the EPA Guidance.   We agree with the following statement by the Washington court in Budget:

“In deciding this case, we are not unmindful of the consequences were we to adopt a very broad interpretation of ‘rule’ (in line with Budget's argument), and the fact that it would all but eliminate the ability of agencies to act in any manner during the course of an adjudication.   The simplest and most rudimentary interpretation of a statute or regulation would require an agency to go through formal rule making procedures.   While it is true that the APA is designed to provide ‘greater public and legislative access to administrative decision making,’ we believe it is equally true that the APA's provisions were not designed to serve as the straitjacket of administrative action.”

144 Wash.2d at 898, 31 P.3d at 1178 (citation omitted).   See also Town of Brookline v. Commissioner of Dep't of Envtl. Quality Eng'g, 398 Mass. 404, 497 N.E.2d 9 (1986) (upholding an “excess cancers risk assessment” of 99 deaths in an exposed population of 10,000, the court held that an administrative agency had the authority to determine the magnitude of risk of human lung cancer from diesel emissions by means of a rulemaking proceeding or by means of a contested-case adjudicatory proceeding).

 Like the Washington Supreme Court, we also recognize that the Alabama APA is designed to ensure that members of the public can participate meaningfully in the development of agency policies that affect them.   However, we believe that Alabama's Hazardous Wastes Management and Minimization Act and the ADEM regulations promulgated thereunder account for the interest in providing public access and participation.   See § 22-30-12(g), Ala.Code 1975, and Ala. Admin. Code R. 335-14-8-.08. Section 22-30-12(g) provides:

“Before issuance of any permit for a hazardous waste treatment, storage or disposal facility, the department shall give notice of the application therefor to the local governing bodies having jurisdiction over the facility and the citizens of the county in which the facility is to be located, receive public comment, and may, where significant interest is expressed or on its own initiative, hold a public hearing on the application.”

Ala. Admin. Code R. 335-14-8-.08 (which is reproduced in full in Appendix A to this opinion) states comprehensive requirements for providing public notice of, and comment upon, hazardous-waste permit proceedings.   Thus, despite the absence of formal notice-and-comment rulemaking procedures in this case, the public-participation interests underlying the rulemaking process were not ignored during the process of granting the permits at issue here.

Although we find Simpson Tacoma Kraft distinguishable, we acknowledge that Families has cited other authorities in support of its position that the 10 -5 standard should have been promulgated by rule.   We simply find the reasoning of the contrary authorities more compelling.   In Maple Leaf Farms, Inc. v. State Department of Natural Resources, 247 Wis.2d 96, 633 N.W.2d 720 (App.2001), the court rejected the argument that “all permit language must be formally promulgated by rule.”  247 Wis.2d at 112, 633 N.W.2d at 729.   The court continued:

“Carrying this logic further would result in a situation where permit writers could include in permits only restatements of the precise language contained in the administrative code.   This would make the issuance of permits an untimely, cumbersome and inflexible exercise that would not benefit permit holders at all.   It makes more sense that the legislature would allow the DNR [Department of Natural Resources] flexibility in drafting conditions in permits.   This allows the DNR to work individually with permit holders to fashion permits that more closely balance the specific needs of the permit holder with public environmental concerns.”

Id.

 Based on the fact that Alabama caselaw construing § 41-22-3(9) provides no clear answer to the question whether the 10 -5 standard derived from the EPA Guidance is a legislative rule required to have been promulgated by notice-and-comment rulemaking, we turn for guidance to the jurisdictions from which Alabama derived the definition (and the exclusions from the definition) of a legislative “rule.”   Based on general principles to be gleaned from the Alabama cases, supplemented by the Georgia and Iowa authorities discussing “interpretive rules,” and fortified, to some extent, by federal authorities construing the Federal Administrative Procedure Act provision excluding “interpretive rules” and “policy statements” from rulemaking, we hold that the 10 -5 cancer-risk factor was an interpretive rule or a “statement of policy” issued in a contested case and was not, therefore, subject to rulemaking.

 First, and most important, we conclude that the cancer-risk factor is not a legislative rule because it does not establish a binding norm under which all future chemical-incineration permits are to be judged.   The EPA Guidance from which the 10 -5 standard was derived states that the standard cannot be relied on to create enforceable rights, that it is not binding, and that it is subject to change.  “The touchstone of a [legislative] rule is that it establishes a binding norm.  [However,] [i]f the agency ‘remains free to consider the individual facts in the various cases that arise, then the agency action in question has not established a binding norm.’ ” Center for Marine Conservation v. Brown, 917 F.Supp. 1128, 1151 (S.D.Tex.1996) (quoting Professionals & Patients for Customized Care v. Shalala, 56 F.3d 592, 596-97 (5th Cir.1995)) (quoting, in turn, Ryder Truck Lines, Inc. v. United States, 716 F.2d 1369, 1377 (11th Cir.1983), cert. denied, 466 U.S. 927, 104 S.Ct. 1708, 80 L.Ed.2d 181 (1984)).   The record before us establishes that, in calculating the risk to human health or the environment from the incineration of chemical weapons, ADEM has reserved some “free[dom] to consider the individual facts in the various cases that arise” and to revise the cancer-risk factor contained in the EPA Guidance accordingly.   At a January 1998 hearing on Families' challenge to the issuance of the permit, Gerald Hardy, then chief of ADEM's hazardous wastes branch, testified as follows:

“[A]s I've stated repeatedly-several times.   I won't say repeatedly-the risk assessment protocol was fixed or frozen at a point in time.   The risk assessment was performed based on the guidance and data available when that protocol was frozen and approved․ [However,] we will factor in or take into account new and updated guidance when the risk assessment is re-performed prior to the facility being allowed to commence operation.

“․

“HEARING OFFICER:  Before we leave this point, I want to ask you, if I could, please, sir, are you saying that this risk assessment to be reaccomplished is still to be done?

“THE WITNESS:  We recognize that, as I stated earlier, guidance was developing and ongoing.   The requirement to do this was only an edict that came out in May of ′93. We were trying to process this application and factor that in ′94 and early ′95. We [were] ․ trying to hit a moving target.   We had to say we make a decision we're going to freeze the guidance and data available so that a risk assessment could be performed based on that information.   To take into account new data that was gathered, new guidance that was issued, we put in a permit condition that prior to the facility being allowed to start operations, ․ a risk assessment would be re-performed and resubmitted to the department a hundred and eighty days prior to that date.

“HEARING OFFICER:  So that event is somewhere out in the future;  is that correct?

“THE WITNESS:  Correct.   And it's supposed to reflect the guidance that is current and data that is current at that time.”

We note that the use of the EPA Guidance in assessing the risk of chemical-weapon incineration has been criticized by one commentator who believes that “improvements to the current risk-assessment methodology should be made.”   See Lawrence V. Tannenbaum, Risk Assessments for Chemical Stockpile Incinerators:  Is the Supporting Guidance Adequate?   11 Risk:  Health, Safety & Env't 267, 285 (2000).   Tannenbaum states that

“[g]iven the approaching Chemical Weapons Convention deadline for destruction of the entire chemical stockpile, it would be prudent to ensure that the current guidance is not enforced verbatim for the [chemical stockpile incineration] case.”

Id. at 286.   Tannenbaum concludes:

“Where there are opportunities for introducing improvements to the guidance, these should proceed in a site-specific manner.”

Id. (Emphasis added.)   The record before us indicates that ADEM does not intend to rigidly enforce the risk-assessment methodology set out in the EPA Guidance.   We think that, by requiring the permittees to submit a “risk assessment addendum” at three points in the process-before commencing incineration operations, before the start of a “shakedown” period, and after the first “trial burn”-ADEM has indicated its intent to proceed in a “site-specific manner.” ²  Cf. Limerick Ecology Action, Inc. v. United States Nuclear Regulatory Comm'n, supra (holding that, in determining the accident risk for a nuclear generating station, neither the severity of the consequences nor the likelihood of the occurrence of an accident is subject to a generic, across-the-board assessment;  each determination must be site-specific).

Next, we conclude that the 10 -5 cancer-risk factor is not a legislative rule subject to notice-and-comment rulemaking because, by definition, it cannot-and for safety reasons, should not-qualify as a statement of “general applicability.”   As we have already discussed, chemical-weapon incineration is sui generis in Alabama.   Destruction of these weapons pursuant to treaty presupposes that they will be eradicated from the military arsenals of the signatory nations.   The record indicates that the 10 -5 standard is based on cutting-edge scientific knowledge that is continually being updated.   The record demonstrates that, in constructing the Anniston disposal facility, the Army has acted on a “lessons learned” basis.   That is, the Army has benefitted from the experience of two other chemical-weapon disposal facilities-at Johnson Atoll and at the Tooele Chemical Agent Disposal Facility in Utah. The lessons learned from the operation of those facilities have been incorporated into safety measures at the Anniston facility. Because the scientific and technological basis for assessing the health risks of incineration is subject to change, we think it would be unwise for any health risk assessment to be “generally applicable” and therefore promulgated as a binding “rule.”   See 40 C.F.R. § 300.430(e)(2)(i)(A)(2) (“For known or suspected carcinogens, acceptable exposure levels are generally concentration levels that represent an excess upper bound lifetime cancer risk to an individual of between 10 -6 and 10 -4 ”) (emphasis added).

Based on the foregoing authorities, we hold that the cancer-risk factor derived from the 1994 EPA Guidance was not a legislative “rule” subject to notice-and-comment rulemaking.

II.

 Families argues that ADEM failed to comply with Ala. Admin.   Code R. 335-14-5-.04. That Rule (which is reproduced in full in Appendix B to this opinion) requires “each owner or operator [of a hazardous-waste facility to have] a contingency plan for his facility.”   Families contends that ADEM erroneously interpreted the Rule to require a contingency plan that addresses only on-site hazards to human health and the environment, whereas, Families maintains, the correct interpretation of the Rule is to require a contingency plan that addresses both on-site and off-site hazards.   A careful reading of the relevant testimony elicited at the administrative hearing, as well as the hearing officer's findings of fact and conclusions of law on this issue compels the conclusion that the hearing officer did not interpret the Rule to require a contingency plan that addresses only on-site hazards.

Initially we note that the hearing officer specifically found:

“[T]he regulation at issue envisions a contingency plan that is designed to eliminate hazards.   At times during the trial hearing, [Families] attempted to change the standard to require a plan that absolutely eliminates all hazards.   Unfortunately, no plan can eliminate all potential hazards from the release of chemical agent․ Any release of chemical agent would create the potential for hazards to human health and the environment.   The only sure way to eliminate the potential hazards from a release of chemical agent is to eliminate the chemical weapons themselves, which is what this chemical weapons disposal facility is designed to do.” 3

The hearing officer's findings of fact on the contingency plan issue recited, among other things, that the Anniston Army Depot has a chemical accident response and assistance plan (“CAIRA Plan”) in place;  that the contingency plan incorporates the CAIRA Plan by reference;  that “in the event response actions would be required outside the boundaries of the ANCDF [Anniston Chemical Agent Disposal Facility], the CAIRA Plan would be implemented”;  that “[t]he ․ Contingency Plan describes the arrangements agreed to by local police departments, fire departments, hospitals, contractors, and state and local emergency response teams to coordinate emergency services”;  that “[t]he Chemical Stockpile Emergency Preparedness Program (‘CSEPP’) is a federal program designed to help local communities near stockpiles to put into place plans, procedures, and technologies to effectively protect the citizens of their communities”;  that “[t]he CSEPP program has provided over $30 million to Calhoun County for equipment and other assistance to allow the county to better implement emergency response procedures”;  that “[t]he CSEPP program has provided to Calhoun County ․ $1.8 million for the emergency operations center currently used by Calhoun County Emergency Management Agency”;  that “[t]he CSEPP program [has] fully fund[ed] seven of the ten full-time positions with the Calhoun County Emergency Management Agency.   The other positions are partially funded with CSEPP funds”;  that “Calhoun County can use the equipment purchased with CSEPP funds for missions and operations not related to the chemical munitions stockpile”;  and that “[t]he federal government does not prohibit Calhoun County from spending its own funds for chemical stockpile preparedness.”  (Emphasis added.)

The hearing officer's conclusions of law state, in pertinent part:

“4. The ․ Contingency Plan complies with the requirements of ADEM Admin. R. 335-14-5-.04.;

“5. The Depot and the PMCD [Army Program Manager for Chemical Demilitarization] have no legal authority to direct local police, fire, emergency management, or other officials, beyond the boundaries of the Depot.

“6. The Depot and the PMCD cannot be legally responsible for the actions or inactions of local police, fire, emergency management, or other officials.”

The hearing officer's findings of fact are fully supported by the record and Families does not dispute them.   In other words, Families agrees that the contingency plan includes all the steps recited by the hearing officer-that the Army has recommended, planned, coordinated, and funded local emergency-response measures and procedures.   The hearing officer found, and our review confirms, that those steps comply with parts 3(c), 7(a)(2), 7(d)(2), 7(d)(2)(i) through (vi), and 7(i) of Rule 335-14-5-.04, specifically relating to off-site effects and local response in the event of a chemical-weapons emergency.

 Apparently, Families also agrees that items 5 and 6 of the hearing officer's conclusions of law are correct.   That is, Families does not dispute that the Army has “no legal authority to direct” and “no legal responsibility for” the actions of local police, fire, emergency management, or other officials, beyond the boundaries of the Depot.   Nevertheless, Families maintains, the Army's inability to enforce or require off-site preparedness measures is not determinative because, it says, unless permit applicants develop and implement a plan to address off-site hazards, they have not complied with the requirements of Rule 335-14-5-.04. That argument implies that, regardless of the Army's legal inability to do more than make recommendations to local officials, and irrespective of the Army's attempts to plan, coordinate, and fund local emergency-response measures and procedures, Rule 335-14-5-.04 makes the Army the guarantor of the off-site population's readiness.   We cannot accept such a strained reading of the rule.   First, the rule requires an operator to have a contingency plan “for his facility.”   The “facility” is the Army Depot.   Second, contrary to Families' argument, the Army's contingency plan does address off-site hazards.

The plan requires the Army to communicate, coordinate, and plan with local officials.   The contingency plan demonstrates that the Army has done those things.   In addition, the Army has funded local preparedness efforts.  Rule 335-14-5-.04 does not require that the Army guarantee local readiness.

The judgment of the Montgomery Circuit Court is affirmed.

OPINION OF OCTOBER 18, 2001, WITHDRAWN;  OPINION SUBSTITUTED;  APPLICATION OVERRULED;  AFFIRMED.

APPENDIX A

APPENDIX B

FOOTNOTES

1.   The Johnson Atoll facility has apparently completed its incineration operations.

2.   The following testimony was elicited at the administrative hearing:“Q. [By Major Ayres] And what's your understanding of what will happen to th[e] information that's produced as a result of th[e] trial burn?“A. [By Drew Lyle, acting team leader for the environmental team of the program manager for chemical demilitarization] The information from the trial burn will be looked at to see whether or not it has an impact on the health risk assessment.   If the emissions from the facility seem to be a lot lower than what was initially predicted ․ the Army just needs to provide an analysis to ADEM on whether or not the impact of the health risk assessment is going to increase or decrease risk that was previously projected by the risk assessment done for the application.“Q. So if I understand your testimony, the emissions data from the trial burn will then be compared to the screening risk assessment that's already done?“A. Correct.“․“Q. Could you read directly from the permit the portions that deal with this issue?“A. [A]fter each trial burn ․ and after the performance test ․ the permittee shall submit to the department a risk assessment addendum (RAA) following the revised protocol provided for in condition I.K.4 of this permit which shall compare the results of each trial burn or performance test to the data used in the preliminary risk assessment with respect to emission estimates, stack parameters, and toxicology values.”(Emphasis added.)

3.   The record contains evidence that the risks inherent in continuing to store the chemical weapons are much greater than the risks attendant to incinerating the weapons.   See Chemical Weapons Working Group, Inc. v. United States Dep't of the Army, 111 F.3d 1485, 1489 (10th Cir.1997);  Chemical Weapons Working Group, Inc. v. United States Dep't of the Army, 963 F.Supp. 1083 (D.Utah 1997).   Summarizing an Army quantitative accident risk assessment (“QRA”), the federal district court for the District of Utah stated:“The final QRA concluded that, on average, 34 days of continued storage of the [chemical weapons] stockpile incurs a public risk equal to that associated with the entire 7.1 years of [incineration] operations.   If rare events such as earthquakes and aircraft accidents are removed from the assessment, the finding is stronger-the risk to the public from the entirety of [incineration] operations is equaled by the risk of only 2.3 days of continued storage.   The final QRA also concludes that a one year delay in processing will approximately double the risk to the population surrounding the stockpile.”963 F.Supp. at 1092 (footnote omitted).

CRAWLEY, Judge.

YATES, P.J., and PITTMAN, J., concur. THOMPSON and MURDOCK, JJ., concur in the result.