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Environmental Defense Fund v. Costle

Citation: 10 ELR 20803
No. Nos. 79-1473 et al., 636 F.2d 1229/14 ERC 2161/(D.C. Cir., 09/16/1980) Denial of motion to vacate settlement aff'd

The court upholds an order by the district court, 9 ELR 20176, modifying but not vacating a 1976 settlement agreement, 6 ELR 20588, between the Environmental Protection Agency (EPA) and five environmental groups which required EPA to regulate discharges of 65 toxic pollutants under § 307 of the Federal Water Pollution Control Act (FWPCA). The agreement, which settled four lawsuits brought against EPA to enforce several provisions of the FWPCA, was challenged by several industrial corporations. The court first rejects the claim that Congress intended the 1977 amendments to the FWPCA to supersede the agreement. Although a consent decree may be modified when there has been a change in controlling law, the court concludes that neither the terms of the amendments nor the legislative history support this claim. Instead it finds that the two major substantive changes in the toxic pollutant provisions of the Act made by the 1977 amendments merely ratified the settlement agreement. In the amendments, Congress substituted an industry-by-industry, technology-based approach for the pollutant-by-pollutant, health-based approach previously required by § 307 of the Act, and included a specific list of 65 pollutants to be controlled. Second, the court does not agree that two of four cases that were settled by the agreement have become moot because of the 1977 amendments. The court rules that EPA's compliance with paragraph 13 of the agreement, which required EPA to promulgate pre-treatment standards for eight categories of point sources, did not eliminate plaintiffs' claim in the "pre-treatment" case since the complaint specifically sought the listing of more than 30 categories of point sources. The court also finds that the "toxic criteria" case is not moot since there is no clear evidence that EPA has abandoned the 1973 criteria for making decisions to list pollutants, which the environmental plaintiffs alleged violate the FWPCA. Third, the court finds that modifications of the settlement agreement are not "rules" within the meaning of the Administrative Procedure Act and do not require compliance with its notice and comment provisions. In addition, EPA did not violate public participation requirements of the FWPCA, its own regulations, or the Fifth Amendment. In conclusion, the court remands the case to the district court to consider whether the agreement impermissibly infringes on the discretion Congress committed to EPA in implementing the FWPCA.

Counsel for Appellants
Richard E. Schwartz, Thomas L. Anderson
Collier, Shannon, Rill, Edwards & Scott
Suite 308, 1055 Thomas Jefferson St. NW, Washington DC 20007
(202) 337-6000

Charles F. Lettow
Cleary, Gottlieb, Steen & Hamilton
1250 Connecticut Ave. NW, Washington DC 20036
(202) 223-2151

Counsel for Appellees
Jacqueline M. Warren
Environmental Defense Fund, Inc.
475 Park Ave. S, New York NY 10016
(212) 686-4191

James T. Banks, Ronald J. Wilson
Natural Resources Defense Council, Inc.
1725 I St. NW, Washington DC 20006
(202) 223-8210

Steven Schatzow, Deputy Assoc. General Counsel; Richard G. Stoll
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

James W. Moorman, Ass't Attorney General; Jacques B. Gelin, Michael A. McCord, E. J. Shawaker
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Before WRIGHT, Chief Judge, and SWYGERT* and ROBINSON, Circuit Judges.