ELR Citation: ELR 20218
No(s). 86-3356 (D.D.C. Sep 16, 1987)

The court upholds the Environmental Protection Agency's (EPA's) decision to defer consideration of all applications for ocean dumping permits for ocean incinerators under the Marine Protection, Research, and Sanctuaries Act (MPRSA) pending promulgation of new regulations specifically governing ocean incineration. The court first holds that EPA's deferral of permits for ocean incinerators was a rule of agency procedure, and therefore exempt from the notice and comment requirements of the Administrative Procedure Act (APA). The deferral is a "rule" because it is a statement describing conduct that the agency intends to follow in the future. The rule is "procedural" because it does not "substantially affect," "jeopardize," or act "toward a determination" of the interests of a permit applicant. Rather, the rule merely alters EPA's method of operations. Although the rule may affect a permit applicant and cause some difficulty in the process of obtaining a permit, both the effect and the difficulty are temporary. While it is possible that the applicant will be unable to obtain a permit under the new ocean incineration regulations, EPA has afforded full opportunity to comment on the proposed regulations. EPA's intent in deferring issuance of permits pending promulgation of the new regulations was not to affect the substantive rights of permit applicants, but to suspend action on new applications until the outmoded and unsatisfactory old rules could be reexamined. The court also holds that EPA did not violate its own rules requiring it to process permit applications, since agencies are empowered to adopt their own rules of procedure, and to change those rules when necessary. Finally, the court holds that EPA's decision to defer consideration of permit applications did not violate the arbitrary and capricious standard of the APA. The agency clearly had reason to believe that ocean incineration carries environmental hazards, and it reacted to the perceived hazards in a reasonable manner after considering and rejecting more moderate alternatives.

Counsel for Plaintiff
Angus MacBeth, Samuel I. Gutter
Sidley & Austin
1722 I St. NW, Washington DC 20006
(202) 429-4000

Counsel for Defendant
Ashley Doherty
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000