ELR Citation: ELR 20556
No(s). IP 88-194-C (S.D. Ind. Dec 5, 1989)

The court holds that an internal Environmental Protection Agency (EPA) memorandum that imposes new and more stringent Clean Air Act duties on the paper coating industry violates the Administrative Procedure Act because it was not subject to notice and comment rulemaking. The memorandum provides that compliance with state implementation plan emission limits, expressed in terms of mass of volatile organic compounds per unit volume, must be determined on an equivalent solids basis. The memorandum also stated that emissions achieved through incineration must be equivalent to those attainable under the alternative approach of using a higher solids coating. The court holds that the memorandum amounts to a legislative rule and thus must be subject to notive and comment rulemaking before being applied to the paper poroducts industry. The memorandum imposes additional, substantial emissions requirements beyond those in the present regulations. Further, EPA made clear in its enforcement action that it regards the memorandum to have a present, binding effect on regulated firms. The memorandum also amended a prior legislative rule that had been adopted through notice and comment procedures.

Counsel for Plaintiff
Daniel S. Jacobs, Stephen L. Samuels
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington DC 20044
(202) 633-4076

Counsel for Defendant
Bryan G. Tabler
Barnes & Thornburg
1313 Merchants Bank Bldg., 11 S. Meridan St., Inianapolis IN 46204
(317) 638-1313