ELR Citation: ELR 20475
No(s). 93 Civ. 0314(AGS) (S.D.N.Y. Mar 27, 2000)

The court partially grants the U.S. Environmental Protection Agency's (EPA's) motion to amend a consent decree it entered into with various organizations that requires the Agency to promulgate regulations for cooling water intake structures under the Clean Water Act (CWA) §316(b). EPA sought to bifurcate the rulemaking process into two separate phases for new and existing structures. EPA also sought to extend the deadlines for the rulemakings. The court first holds that it will apply the standard for modification of consent decrees from Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992). Rufo focused on and specifically addressed institutional reform litigation, and the present case is sufficiently analogous to institutional reform. The consent decree at issue in the instant case, like that in Rufo, reaches beyond the parties involved directly in the suit and impacts on the public's right to the sound and efficient operation of its institutions.

The court next holds that EPA's alleged factual changes do not justify modification of the consent decree. EPA did not demonstrate that the delays resulting from alleged data deficiencies, changes in the Office of Management and Budget regulations governing information requests, or the requirements of the Small Business Regulatory Enforcement Act would affect compliance with the consent decree. Likewise, EPA should have anticipated the necessity of studying watersheds surrounding cooling towers, and potential changes to the electric utility industry were not significant enough to invalidate the consent decree. However, the court holds that the public interest requires the consent decree to be modified to enable EPA to produce a sound regulation. Because of the significant amount of work remaining to be completed, EPA cannot promulgate a scientifically and legally defensible regulation by the deadline. The public interest in the prompt issuance of a regulation is outweighed in the short term by the need to prepare a regulation that minimizes adverse environmental impacts under CWA §316(b) and enables an attainment of water quality that provides for protection of the environment.

The court then holds that bifurcation of the process is a sensible strategy because it offers a mechanism for the promulgation of a sound, albeit partial, regulation in the shortest time. Nevertheless, the court holds that EPA's suggested modification deadlines—October 5, 2000, for the phase one proposal regulating new structures, and May 16, 2002, for the phase two proposal regulating existing structures—are not suitably tailored to the changed circumstances when due consideration is given to the interest of the public in the prompt issuance of the regulation. Consequently, the court ordered EPA to promulgate the phase one proposal by July 20, 2000, and the phase two proposal by July 20, 2001.

[A prior decision in this litigation is published at 26 ELR 20318.]

Counsel for Plaintiffs
P. Kent Correll
Law Offices of P. Kent Correll
666 5th Ave., 37th Fl., New York NY 10103
(212) 475-3070

Counsel for Defendant
Jonathan A. Willans, Ass't U.S. Attorney
U.S. Attorney's Office
One St. Andrew's Plaza
100 Church St., New York NY 10007
(212) 637-2200