ELR Citation: ELR 20826
No(s). 00 CIV.9700(JSR) (S.D.N.Y. Jul 15, 2002)

ELR Digest

The court remands to the U.S. Army Corps of Engineers a company's application for a permit to dump certain sediment from a channel adjoining one of its plants into a historic area remediation site. After the company applied for the permit, the Corps published notice that it intended to issue the permit subject to pubilc comment, and only a few negative comments were received. However, the day after the comment period ended, the Corps and the U.S. Environmental Protection Agency (EPA) pubilshed a joint memorandum that lowered the permissible level of polychlorinated biphenyls in the relevant sediment and made that standard applicable to all future and pending permit applications. The following day, EPA withdrew its consent to issue the company's permit on the ground that the company's dredged material failed to meet the new standard.

The court first holds that the joint memorandum issued by the Corps and EPA, being binding and outcome-determinative, was a rule and subject to the notice-and-comment requirements of the Administrative Procedure Act. The court, therefore, then holds that the Corps' and EPA's effective denial of the company's permit application on the basis of this unlawfully promulgated rule was improper. It does not follow, however, that the company is automatically entitled to the permit because the Corps and EPA never gave any consideration to the public comments received during the company's comment period prior to promulgation of the new standard. Thus, the court remands the matter to the Corps for reconsideration of the company's permit application, applying pre-memorandum standards but taking account of the public comments received.

The full text of this decision is available from ELR (3 pp., ELR Order No. L-549).

Counsel for Plaintiff
Daniel Riesel
Sive, Paget & Riesel
460 Park Ave., New York NY 10022
(212) 421-2150

Counsel for Defendants
Robert Sadowski, Ass't U.S. Attorney
U.S. Attorney's Office
One St. Andrew's Plaza, New York NY 10007
(212) 637-2200