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NRDC v. United States EPA - 279 F.3d 1180 (9th Cir. 2002)


Under the Administrative Procedures Act, the Environmental Protection Agency (EPA) must provide the public with notice and an opportunity to comment before it issues National Pollutant Discharge Elimination System permits. 5 U.S.C.S. § 553(b)-(c); 40 C.F.R. §§ 124.6(d), 124.10(a)(1)(ii), (b). Like other agencies, the EPA must provide notice sufficient to fairly apprise interested persons of the subjects and issues before the agency. Of course, the final permit issued by the agency need not be identical to the draft permit. Indeed, it is the expectation that the final rules will be somewhat different and improved from the rules originally proposed by the agency. Thus, the law does not require that every alteration in a proposed rule be reissued for notice and comment.


To achieve the goal of reducing and eventually eliminating pollution, Congress prohibited the "discharge of any pollutant" from a "point source" into the waters of the United States, unless that discharge complied with the Clean Water Act (CWA) of 1971. Because of Alaska's unique and rugged terrain, most logs cut in Alaska are transported to market through marine waters. The transport would cause barn and woody debris to be rubbed or broken off and released into the water. The Environmental Protection Agency (EPA) dentified bark and woody debris as a pollutant in the early 1980s. In the mid-1990s, the EPA proposed to modify all pre-1985 permits for Log Transfer Facilities (LTFs) in Alaska. EPA Alaska proposed to allow a one-acre zone of deposit for bark and woody debris, defined by accumulations of 100 percent cover that exceed four inches' depth at any point, and to allow patchy distribution of bark beyond the one-acre zone of deposit.

As it was required to do, the EPA sought certification from Alaska before it finalized the proposed general permit for LTFs in Alaska. In its final draft certification, which apparently was not circulated to the public for comment, the Alaska Department of Environmental Conservation (ADEC) placed no specific size limit on zones of deposit. Instead, it authorized each LTF's zone to be its "project area," or the entire area of water covered by its operations. The EPA accepted ADEC's certification, and accordingly issued final general permits. Under the final permits, pre-1985 LTFs must submit notification to the EPA and to ADEC before engaging in activities that will release bark and woody debris. However, the notification is informational only and the LTFs may engage in the activities without any further action from the EPA. Post-1985 LTFs must submit a notice of intent and then receive approval from the EPA before engaging in any activities that will release bark and woody debris. The public will not have the opportunity to comment before the EPA decides whether to give its approval. Plaintiffs sought review of the issued permits, arguing that they were not given notice and opportunity to comment under the Administrative Procedures Act.


Should the issued permits be remanded to the EPA for further review on the basis that the same were granted without giving notice and opportunity to the public to comment?




The court held the EPA's notice and comment procedure did not afford interested parties the opportunity to comment on whether Alaska's proposed change in the "zone of deposit" definition conformed to Alaska law and, if not, whether the change required the issuance of a conditional permit or the denial of a permit. The EPA's draft had referenced a "zone of deposit" consistent with then-existing Alaska regulatory practice. Alaska's certification proposed a different practice, which was then approved by the EPA. But, the public was never notified that Alaska proposed to redefine the zone, nor was the public afforded the opportunity to comment on the proposed change, either at the state or federal level. Interested parties could not have reasonably anticipated that the final permit would sanction the use of project-area "zones of deposit" that could exceed one acre. The change was substantive, as had been acknowledged by the EPA in a letter to the state. Since the final rule deviated sharply from the proposal, the EPA erred in not affording notice and soliciting further comments. The EPA had an independent statutory obligation to ensure compliance with water quality standards.

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