Pacific Legal Foundation v. Costle

No. S-79-429-PCW (E.D. Cal. October 31, 1979)

The court establishes a schedule for the Environmental Protection Agency (EPA) to issue ocean discharge guidelines pursuant to § 403(c) of the Clean Water Act, 33 U.S.C. § 1343(c), ELR STAT. & REG. 42142. By November 9, 1979, the Agency is required to issue interim guidelines that conform to EPA policy for national pollutant discharge elimination system (NPDES) permits. The final guidelines are due by July 30, 1980. In a stipulation (not published; available from ELR, 4 pp. $0.75, ELR Order No. C-1207), EPA and plaintiff-intervenors agree (1) that EPA shall issue final guidelines in accordance with the schedule and that the NPDES permits issued prior to the promulgation of the final guidelines shall take into account the criteria of § 403(c) and the ocean dumping criteria of 40 C.F.R. pt. 227 and (2) that plaintiff-intervenors shall discontinue efforts to secure revised ocean discharge guidelines and to have the final NPDES regulations amended.

Counsel for Plaintiff
Ronald A. Zumbrun, Robert K. Best, David M. Shell
Pacific Legal Foundation
455 Capitol Mall, Suite 600, Sacramento CA 95814
(916) 444-0154

Counsel for Defendants
Herman Sillas, Jr., U.S. Attorney
2058 Federal Bldg., 650 Capitol Mall, Sacramento CA 95814
(916) 440-2331

Joan M. Cloonan
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3140

Bethami Auerbach
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-0796

Counsel for Plaintiff-Intervenors National Wildlife Federation and California Natural Resources Federation
Kenneth S. Kamlet
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
(202) 797-6870

[10 ELR 20140]

WILKINS, J.:

[10 ELR 20141]

Judgment

The motions of plaintiff for default judgment or, in the alternative, for summary judgment, and of plaintiff-intervenors for summary judgment, and defendants' cross-motion to set aside entry of default having been presented, all parties being heard at oral argument on October 29, 1979, and the Court being full advised,

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that:

1. Plaintiff's motion for default judgment is denied.

2. Defendants' cross-motion to set aside entry of default is granted.

3. Plaintiff's and plaintiff-intervenors' request for a declaration that defendant Costle is in violation of Clean Water Act § 403(c), 33 U.S.C. § 1343(c), for failure to promulgate and maintain in effect ocean discharge guidelines is granted.

4. Plaintiff's and plaintiff-intervenors' request for an order that defendant Costle promulgate revised ocean discharge guidelines is granted; defendant Costle shall, on or before July 30, 1980, deliver to the office of the Federal Register for publication final ocean discharge guidelines in accordance with defendant Costle's proposed schedule (attached hereto), or present to the Court a strong showing of cause for further extension.

5. Plaintiff's request that defendant Costle be ordered to issue interim ocean discharge guidelines is granted; defendant Costle shall, on or before November 9, 1979, deliver to the office of the Federal Register for publication interim ocean discharge guidelines which conform to current Environmental Protection Agency policy in reviewing, issuing, or denying National Pollutant Discharge Elimination System permits for discharges to the territorial seas, the contiguous zone, or the oceans pending repromulgation of final ocean discharge guidelines.

6. Defendant Costle is ordered to provide for, encourage, and assist Pacific Legal Foundation's and all other interested persons' participation in development, revision, and enforcement of ocean discharge guidelines.

*2*Environmental Protection Agency's Schedule

October 10, 1979 Initiate action

November 21, 1979 Complete draft proposed regulation

November 28, 1979 Division Director approval

December 5, 1979 Assistant Administrator approval

December 18, 1979 Steering Committee approval

January 16, 1980 Red Border review complete

January 23, 1980 To Administrator for review

January 30, 1980 Signature by Administrator

February 6, 1980 Send to Federal Register for publication

February 13, 1980¹⁴ Publication in Federal Register as

proposed regulation; commencement of

forty-five day public comment period

March 31, 1980 Close of public comment period

May 14, 1980 Complete draft final regulation

May 21, 1980 Division Director approval

May 28, 1980 Assistant Administrator approval

June 10, 1980 Steering Committee approval

July 2, 1980 Red Border review complete

July 9, 1980 To Administrator for review and

briefing

July 23, 1980 Signature by Administrator

July 30, 1980 Send to Federal Register for publication

as final regulation

14. Once a regulation is submitted for publication in the Federal Register, determination of the actual publication date is out of the hands of the Agency. (Davis Aff., footnote to P3). If a regulation is fairly lengthy, it usually takes a week to be published. (Costle Aff. P9.)

Therefore, since the February 13, 1980 publication date is necessarily approximate, a slight change in that date, forward or backward, may result in a commensurate alteration in the remaining dates in the timetable, including the July 30, 1980 date for submittal of the final regulation for publication. (Davis Aff., footnote to P3.)