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Natural Resources Defense Council v. Costle

Citation: 9 ELR 20176
No. Nos. 2153-73 et al., 12 ERC 1833/(D.D.C., 03/09/1979) Motion to vacate settlement denied

After more than five years of litigation regarding the regulations by the Environmental Protection Agency (EPA) of toxic water pollutants under § 307 of the Federal Water Pollution Control Act (FWPCA), the court denies the industrial intervenors' motion to vacate a settlement agreement entered into in 1976, 6 ELR 20588, and grants the joint motion of plaintiffs and defendants to amend the settlement. In support of their motion, intervenors relied on statements made on the floor of the House of Representatives tending to indicate that Congress intended the 1977 amendments to the FWPCA to repudiate the settlement agreement and establish a new regulatory program. The court, however, finds such statements inconclusive, ruling that the 1977 amendments did not reject the settlement but instead relied upon it to supply missing details of a cohesive strategy for controlling toxic water pollution. The court also rejects intervenors' opposition to the joint motion for modification of the settlement agreement on the basis of mootness. Although two of the four cases which were consolidated into the present action are now arguably moot because of the effect of the 1977 amendments, two remaining cases contain live controversies, including the challenge to the validity of the criteria used by the Agency to identify toxic pollutants and the challenge to the Agency's failure to issue pretreatment standards. Thus, the entire settlement cannot be ruled moot because it is a comprehensive, interrelated whole rather than a divisible series of agreements. As to the intervenors' further contention that the proposed modification is so broad that it constitutes rule making to which notice and comment procedures should be attached under the Administrative Procedure Act (APA) and the due process clause of the Constitution, the court finds that the proposed modification is not sufficiently substantial to raise constitutional issues or to constitute rule making under the APA. Finally, the court denies intervenors' request that any modification be accompanied by an explanatory note limiting the authority of the court to enforce certain portions of the agreement in the future.

Counsel for Plaintiffs
Ronald J. Wilson
810 18th St. NW, Washington DC 20036
(202) 628-3160

Counsel for Defendants
Michael P. Carlton, Thomas Lee
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2793

Counsel for Industrial Intervenors
Robert C. Barnard, Richard R. Gardner
Cleary, Gottlieb, Steen & Hamilton
1250 Connecticut Ave. NW, Washington DC 20036
(202) 223-2151