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American Petroleum Inst. v. Costle

Citation: 12 ELR 20951
No. No. 79-0858, 17 ERC 1334/(E.D. La., 07/16/1981)

The court enjoins Environmental Protection Agency (EPA) enforcement of new discharger rules against movable offshore oil drilling rigs and upholds signatory and certification regulations implementing the national pollutant discharge elimination system (NPDES) permit program under the Federal Water Pollution Control Act. Initially, the court rules that it has jurisdiction pursuant to the Administrative Procedure Act. It then rejects EPA's claim that the court erred in considering affidavits from plaintiffs, which were not part of the administrative record since the affidavits concerned only the extent of the irreparable injury plaintiffs would suffer if injunctive relief was not granted.

Turning to the substantive issues, the court first holds that it must adhere to its former ruling enjoining the enforcement of the new discharge rules since no new arguments in their support were presented. Finally, the court holds that it was not arbitrary or capricious for EPA to require senior corporate officials to sign NPDES permit applications. Although the signatory provision lacks factual support in the record, such support is unnecessary for quasi-legislative policy decisions of this sort. In addition, the provision is not invalid even though communications with the Department of Justice were not included in the record. It is well established that agency personnel may consult privately with officials from other executive offices in developing regulations. EPA acted within its statutory authority in enforcing the regulations. It also properly determined not to (1) incorporate the Justice Department communication in the record because of the policy nature of the signatory provision, (2) explain the purpose of the provision in the preamble to the regulations, or (3) give consideration in the record to the costs of compliance.

Counsel for Plaintiffs
Gene W. Lafitte
Liskow & Lewis
50th Floor, One Shell Sq., New Orleans LA 70139
(504) 581-7979

Counsel for Defendants
David T. Buente Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2807

Francis Allen, Ass't U.S. Attorney
3B12 Fed. Bldg., Shreveport LA 71101
(318) 226-5277