has not determined that the State or Tribe has authority over the site of the proposed Lake Andes landfill. The EPA Region VIII developed an alternative mechanism to allow the District to seek the waiver directly from the Region. The waiver was received on October 6,1995. The EPA has reviewed the District’s application and has made a tentative decision to approve their waiver. (Admin.Ree. at 1160.) The agency intended to, and did create, a new right in the District under these circumstances to petition the agency directly, and thus, the agency’s “alternative mechanism” is properly considered to be a legislative rule subject to the APA’s notice and comment procedures rather than an interpretative rule. Cf General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C.Cir.1984) (en banc) (<HOLDING>), cert. denied, 471 U.S. 1074, 105 S.Ct. 2153,
holding that epa rule relating to repair of cars not in compliance with clean air act was interpretative not legislative rule and thus not subject to apa notice and comment procedures holding that because record did not contain notice of appeal in compliance with rule 3 there was no appellate jurisdiction and appeal must be dismissed holding the epa could regulate air pollutants under the clean air act solely on the basis of the pollutants risk to human health holding that defendant could not be sanctioned and found to have violated the clean air act when it complied with regu lations as codified despite having knowledge that the epa requested amendment of the regulations to prohibit defendants conduct holding for a citizen suit brought under a substantially identical provision of the clean air act that whether plaintiffs have established a nondiscretionary duty to act by the epa is a merits question under rule 12b6 rather than a subjectmatter jurisdiction question under rule 12b1