ELR Citation: ELR 20486
No(s). 89-0655-B (S.D. Ala. Dec 4, 1989)

The court holds that pulp and paper mills and their trade association are not entitled to enjoin the Environmental Protection Agency (EPA) from implementing a policy statement offering guidance to states in EPA's Region 4 concerning the discharge of dioxin into rivers and streams from pulp and paper mills. The policy statement was based on a national EPA guidance document regarding the regulation of dioxin. The document, which was originally submitted to the states in Region 4 for review and comment, sets forth several changes to be made regarding the regulation of dioxin discharges from pulp and paper mills. Plaintiffs seek to enjoin enforcement of the policy statement because EPA failed to follow rulemaking procedures established by the Administrative Procedures Act for final agency actions. The court holds that the Region 4 policy statement is not final agency action that requires immediate implementation of more stringent dioxin controls, and thus the court lacks subject matter jurisdiction. The court holds that its jurisdiction in this case is not precluded by the doctrine of collateral estoppel since the issue of finality previously determined in a related case, American Paper Institute, Inc. v. United States Environmental Protection Agency, 19 ELR 21377, may not involve the identical issue and same parties as are presented here. However, the court holds that its review of this case is precluded since the policy statement is not final agency action subject to judicial review. The policy statement was informally sent to the states for comments, does not have the status of law, is not binding on anyone at this stage, and does not have a direct effect on the day-to-day business of the plaintiffs. Although states may feel compelled to comply because EPA's "handwriting is on the wall," this policy statement falls short of the finality criteria required for judicial review. Further, preenforcement review and intervention at this point would essentially emasculate EPA by taking away its power to oversee state regulation and by discouraging EPA from issuing guidance for fear that its communication would be interpreted as final agency action.

Counsel for Plaintiffs
G. Sage Lyons, Charles L. Miller Jr.
Lyons, Pipes & Cook
2 N. Royal St., P.O. Box 2727, Mobile AL 36652-2727
(205) 476-7857

Russell S. Frye
Chadbourne & Park
1101 Vermont Ave. NW, Washington DC 20005
(202) 289-3000

Counsel for Defendants
Letitia J. Grishaw, Diane Regas
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202 382-7706