ELR Citation: ELR 20459
No(s). 00-70890 (9th Cir. Feb 13, 2002)

The court holds that the U.S. Environmental Protection Agency (EPA) failed to provide adequate notice and opportunity to comment before issuing two final Clean Water Act national pollutant discharge elimination system (NPDES) general permits allowing log transfer facility (LTF) operators in Alaska to release bark and woody debris into marine waters. The proposed general NPDES permits for LTF operators authorized the release of bark and woody debris to one-acre zones of deposits. In the final draft of the general permits, which was not circulated to the public for comment, the Alaska environmental agency placed no specific size limit on the zone of deposit and instead authorized LTFs to release to project areas, which could consist of the entire area of water covered by the LTF operation. Although EPA questioned the change, the Agency incorporated the project areas into the final general permits.

The court first holds that the Administrative Procedure Act requires EPA to provide sufficient notice to the public to fairly apprise them of issues before the Agency. EPA's notice-and-comment procedure was inadequate because it did not afford interested parties the opportunity to comment on whether Alaska's proposed change in the zone of deposit definition conformed to the substantive requirement of state law and, if not, whether the change required the issuance of a conditional permit or the denial of the permits altogether. Moreover, the public was never notified that the state proposed to redefine the allowable zone of deposit, nor was the public afforded the opportunity to comment on the proposed change at either the state or federal level. Given that the draft permit specifically referenced the state's proposed one-acre zone of deposit, interested parties could not have reasonably anticipated that the final permit would sanction the use of project area zones exceeding one acre. The court, therefore, remands the general NPDES permits for LTF operators for further proceedings.

Counsel for Petitioners
Sharon Buccino
Natural Resources Defense Council
1200 New York Ave. NW, Ste. 400, Washington DC 20005
(202) 289-6868

Counsel for Respondents
Alan D. Greenberg
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Thomas, J. Before Graber and Gould, JJ.