National Wildlife Fed'n v. Costle
Citation: 10 ELR 20742
No. No. 78-2167, 629 F.2d 118/14 ERC 1680/(D.C. Cir., 07/02/1980)
The District of Columbia Circuit Court of Appeals vacates the district court's decision and remands the Environmental Protection Agency's (EPA's) ocean dumping regulations because the Agency failed to explain why it established separate criteria for dredged and non-dredged wastes. Shortly after Congress enacted the Marine Protection, Research, and Sanctuaries Act of 1972 (the Ocean Dumping Act), the United States adopted the Convention on the Dumping of Wastes at Sea. In 1974, Congress amended the Ocean Dumping Act to incorporate the Convention's standards, and the challenged regulations and criteria were issued pursuant to the Act, as amended. The court first affirms the lower court's grant of summary judgment for defendant in upholding EPA's designation of interim dump sites pending completion of studies as reasonable in the face of an unclear statutory framework. The court also affirms the lower court's dismissal of the challenge to the Corps of Engineers' site designation procedures. Although agreeing that the Corps' regulations fall short of the procedures required by § 4 of the Administrative Procedure Act (APA), the court finds that the issue is not yet ripe for review, particularly because no occasion has arisen to determine whether the Corps' permit application activities are in effect a rule making under the APA. Vacating the district court's summary dismissal of plaintiff's other counts, however, the court finds that EPA failed to explain its rationale for exempting dredged waste materials from several of the restrictions in the revised criteria to be applied by EPA and the Corps in considering dumping permits and designating dump sites. Although the court agrees with the government's arguments that the criteria need not incorporate the Ocean Dumping Act's and the Convention's evaluation factors and that the statute does not impose an "equivalence requirement" for dredged and non-dredged wastes, the regulations and criteria must nonetheless be remanded to EPA because the administrative record contains no explanation for treating dredged and non-dredged wastes differently and thus does not comply with the requirements of § 4(b) of the APA.
Counsel for Appellant
Kenneth S. Kamlet
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
Counsel for Appellee
Rebecca A. Donnellan; James W. Moorman, Ass't Attorney General; Bruce C. Rashkow, Michael N. Reed
Land and Natural Resources Division
Department of Justice, Washington DC 20530
Counsel for Amicus Curiae American Ass'n of Port Authorities
Joseph E. LeBlanc Jr.
Milling, Benson, Woodward, Hillyer, Pierson & Miller
1100 Whitney Bldg., New Orleans LA 70130
Before WRIGHT, Chief Judge, BAZELON, Senior Circuit Judge, and MacKINNON, Circuit Judge.