Wednesday, August 18, 2010
Aug 17: In the U.S. Court of Appeals, Tenth Circuit, Case No. 08-4185. As its name advertises, U.S. Magnesium produces magnesium, though in doing so it also generates various waste byproducts. The lawsuit concerns five of those wastes. The government says that U.S. Magnesium's handling of the wastes must, but hasn't, complied with regulations promulgated under Subtitle C of the Resource Conservation and Recovery Act of 1976 (RCRA). For its part, U.S.Magnesium challenges the premise of the government's suit, arguing that the U.S. EPA exempted the five wastes from Subtitle C's strictures in a prior interpretation of its own regulation. And, U.S. Magnesium says, the Agency cannot change that interpretation now, at least not without first complying with the notice and comment procedures of the Administrative Procedure Act (APA).
At summary judgment, the district court agreed with U.S. Magnesium and entered judgment in its favor. However, the Appeals Court said, "We must vacate that judgment. Even if we assume with U.S. Magnesium that a definitive regulatory interpretation prohibits an agency from later changing course and issuing a new interpretation without first undergoing notice and comment, that's simply not our case. The only prior EPA interpretation U.S.Magnesium can point to is, at best, a tentative one. Because EPA never previously adopted a definitive interpretation, it remained free, even under the legal precedents on which U.S. Magnesium seeks to rely, to change its mind and issue a new interpretation of its own regulations without assuming notice and comment obligations."
The Appeals Court concluded, "For purposes of summary, we hold that EPA hasn't previously adopted a definitive interpretation of its 1991 rule. Even under the case law U.S. Magnesium asks us to follow, the Agency is at liberty to adopt without notice and comment a reasonable interpretation of that ambiguous regulation. At least before us, U.S. Magnesium does not dispute that EPA has done so with this litigation. For this reason, we vacate the entry of summary judgment in U.S. Magnesium's favor and remand this matter to the district court. We do not prejudge what, if any, further proceedings may be appropriate in that court in light of and consistent with this opinion."
Access the complete opinion (click here).
Posted by WIMS at 4:40 PM
Aug 17: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35266. Northwest Environmental Defense Center (NEDC) sued the Oregon State Forester and members of the Oregon Board of Forestry in their official capacities and various timber companies. NEDC argues that Defendants violated the Clean Water Act (CWA) and its implementing regulations by not obtaining permits from the Environmental Protection Agency (EPA) for stormwater -- largely rainwater -- runoff that flows from logging roads into systems of ditches, culverts, and channels and is then discharged into forest streams and rivers. NEDC contends that these discharges are from "point sources" within the meaning of the CWA and that they therefore require permits under the National Pollutant Discharge Elimination System (NPDES).
The district court concluded that the discharges are exempted from the NPDES permitting process by the Silvicultural Rule, 40 C.F.R. § 122.27, promulgated under the CWA to regulate discharges associated with silvicultural activity. The Appeals Court said, "The district court did not reach the question whether the discharges are exempted by amendments to the CWA made in 1987. We reach both questions and conclude that the discharges require NPDES permits."
The Appeals Court explained in its concluding statements, "Until now, EPA has acted on the assumption that NPDES permits are not required for discharges of pollutants from ditches, culverts, and channels that collect stormwater runoff from logging roads. EPA has therefore not had occasion to establish a permitting process for such discharges. But we are confident, given the closely analogous NPDES permitting process for stormwater runoff from other kinds of roads, that EPA will be able to do so effectively and relatively expeditiously.
". . .we conclude that stormwater runoff from logging roads that is collected by and then discharged from a system of ditches, culverts, and channels is a point source discharge for which an NPDES permit is required. We therefore reverse the district court's grant of Defendants' motion to dismiss, and we remand to the district court for further proceedings consistent with this opinion."
Access the complete opinion (click here).
Posted by WIMS at 4:39 PM