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Natural Resources Defense Council v. EPA

Citation: 12 ELR 20833
No. No. 81-2068, 683 F.2d 752/(3d Cir., 07/08/1982)

The Third Circuit invalidates the Environmental Protection Agency's (EPA's) action in indefinitely postponing the effective date of final amendments to regulations governing Federal Water Pollution Control Act pretreatment standards for failure to comply with the notice and comment requirements of the Administrative Procedure Act (APA). Initially, the court rules that the case is not moot since the court could grant relief changing the status quo by reinstating all of the amendments as of March 30, 1981. The court rules that the Agency's action constituted final action reviewable in the court of appeals. The amendments were final when they were published in final form on January 13, 1981.

Turning to the merits, the court holds that EPA's indefinite postponement of the effective date of the amendments constituted a rule subject to the rulemaking procedures of the APA since (1) EPA's action was, in effect, an indirect repeal of the amendments and the APA expressly provides that repeals constitute rulemaking, (2) the Agency treated its October 13, 1981 proposal to further postpone the amendments as a rule subject to rulemaking, and (3) the action postponed the date by which the integrated electroplating industry had to comply with categorical treatment standards and, therefore, had a substantial impact on the public and the regulated industry. In addition, the court rules that compliance with Executive Order 12291 did not bring EPA's action within the good cause exception to the notice and comment procedures of the APA. The Agency's action on October 13, 1981 demonstrates that EPA could have complied with both that order and the APA. Finally, the court rules that the post-promulgation notice and comment allowed by EPA did not cure the lack of such procedures prior to the initial postponement. It orders EPA to reinstate all of the amendments, effective March 30, 1981.

Counsel for Petitioner
Frances Dubrowski
Natural Resources Defense Council, Inc.
1725 I St. NW, Suite 600, Washington DC 20006
(202) 223-8210

Counsel for Respondent
Nancy J. Marvel, Donald W. Stever Jr.; Carol E. Dinkins, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5260

Michael Murchison, Bruce Diamond, Susan Lepow; Robert M. Perry, General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

Counsel for Intervenors
Lawrence T. McNamara Jr., Theodore L. Garrett, Corinne A. Goldstein
Covington & Burling
P.O. Box 7566, Washington DC 20044
(202) 662-6000

Turner T. Smith Jr., T. S. Ellis III, William B. Ellis, Douglas E. Cutler, Norman W. Bernstein, E. Milton Farley III, Richard W. Goldman
Hunton & Williams
P.O. Box 19230, Washington DC 20036
(202) 223-8650

Michael K. Glenn, Gary R. Feulner
Chadbourne, Park, Whiteside & Wolff
Suite 1100, 1612 K St. NW, Washington DC 20006
(202) 872-8050

John M. Cannon, Susan W. Wanat
Mid-America Legal Foundation
20 N. Wacker Dr., Chicago IL 60606
(312) 263-5163

Hunter, J. joined by Gibbons and Thompson,* JJ.