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Roosevelt Campobello Int'l Park Comm'n v. EPA

Citation: 12 ELR 20903
No. Nos. 81-1548 et al., 684 F.2d 1041/17 ERC 2023/(1st Cir., 08/10/1982)

The court vacates the Environmental Protection Agency's (EPA's) decision to issue a national pollutant discharge elimination system (NPDES) permit for a proposed oil refinery at Eastport, Maine and remands the case to EPA for further determinations under the Endangered Species Act (ESA) and the Federal Water Pollution Control Act (FWPCA). Noting that the court's substantive review of an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA) is narrow and that its review of NEPA's essentially procedural requirements is governed by the rule of reason, the court first finds several aspects of the EIS for the project adequate. EPA properly considered only those alternative sites that were feasible and reasonably apparent at the time it drafted the EIS. Its discussion of the alternatives was sufficient to determine that none was substantially preferable to the Eastport site. Turning to the ESA issues, the court rules that EPA's determination that its action is not likely to jeopardize the endangered right and humpback whales and bald eagles due to the extreme unlikelihood of a major oil spill must be reconsidered because EPA violated its duty under § 7(a)(2) of the ESA to use the best scientific data available. The court orders EPA to undertake real time simulation studies, i.e., studies to simulate tanker and pilot responses to actual conditions, and a hydrographic survey of the harbor channel in order to properly assess the risk of a major oil spill. The court also rules that if EPA approves the project, it must prepare a supplemental EIS to assess the magnitude of the risk based on the studies and to establish appropriate conditions of navigation. In conclusion, the court rules that EPA lacked authority under § 511(c)(2) of the FWPCA to review conditions imposed by the State of Maine in its certification of the permit under § 401 of the FWPCA. The EPA Administrative Law Judge's conclusion that the Agency could issue a permit without state-imposed testing and operational conditions intended to minimize the risk of oil spills was thus erroneous. EPA must include those conditions in any NPDES permit issued in the future unless they are lawfully modified by the state.

Counsel for Petitioners
Bruce J. Terris, Karen H. Edgecombe
Terris & Sunderland
1526 18th St. NW, Washington DC 20036
(202) 332-1882

Alan Wilson, Kenneth T. Hoffman, Douglas I. Foy, Kathleen C. Farrell
Conservation Law Foundation of New England
3 Joy St., Boston MA 02108
(617) 742-2540

Counsel for Respondent
Rosanne Mayer, Donald W. Stever Jr.; Carol E. Dinkins, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5409

Susan Studlien
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

Counsel for Intervenors
Jonathan B. Hill, John P. Schnitker
Dow, Lohnes & Albertson
Suite 500, 1225 Connecticut Ave. NW, Washington DC 20036
(202) 862-8000

Wayne S. Henderson
New England Legal Foundation
110 Fremont St., Boston MA 02108
(617) 482-1410

Before Coffin, Bownes, and Breyer, JJ.