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September 15, 1987

Waste Management, Inc., Plaintiff,
United States Environmental Protection Agency, Defendant

The opinion of the court was delivered by: RICHEY


 Under the terms of the Marine Protection, Research, and Sanctuaries Act, any American citizen or corporation that wishes to dump hazardous material into ocean waters must first obtain a permit from the Environmental Protection Agency. See Marine Protection, Research, and Sanctuaries Act ("MPRSA"), 33 U.S.C. § 1401 et seq.; see also Convention on the Prevention of Marine Polluting by Dumping of Wastes and Other Matter, August 30, 1975, 26 U.S.T. 2403, T.I.A.S. No. 8165. In 1977, the EPA promulgated regulations for implementing this permitting authority, see 40 C.F.R. §§ 220-233 (1986), and it has consistently interpreted these regulations to cover ocean incineration as well as ocean dumping. Plaintiff's Statement of Material Facts To Which There Should Be No Dispute ("Plaintiff's Facts"), paras. 3-4. There is no dispute that plaintiff wishes, and is equipped, to obtain ocean incineration permits and conduct ocean burns in future. Id. at paras. 5, 10.

 The EPA, however, has long recognized the need to promulgate regulations that do not treat ocean incineration as another form of ocean dumping but address the peculiar problems and ramifications of ocean burning in a more specific fashion. See, e.g., 40 C.F.R. § 220.3(f) (ocean dumping regulations apply to ocean incineration "until specific criteria to regulate this type of disposal are promulgated"). In December, 1983, the Assistant Administrator for Water told Congress that the agency would attempt to promulgate ocean incineration regulations within one year. Oversight Regarding the Incineration of Hazardous Waste at Sea as Part of the Overall Efforts of Congress to Confront the Problem of Managing Hazardous Waste: Hearings Before the Subcommittee on Fisheries and Wildlife Conservation and the Environment and the Subcommittee on Oceanography of the House Committee on Merchant Marine and Fisheries, 98th Cong., 1st Sess. ("Oversight Hearings") 28 (1983).

 On February 28, 1985, the EPA proposed such regulations, 50 Fed. Reg. 8222, and accepted public comment upon the proposals through June 28, 1985. As a result of the public's 943 submissions, containing 5000 separate comments, the agency has identified five issues on which it will seek additional public comment sometime this year. Affidavit of Lawrence Jensen, Assistant Administrator of Water ("Jensen Affidavit"), para. 5. It anticipates that final regulations will be promulgated in 1988. Id.

 Although defendant has long contemplated these new regulations, until recently it did not have a policy of maintaining the status quo with respect to ocean burning of hazardous waste until the new rules are in place. Accordingly, in 1981, plaintiff submitted applications for two ocean incineration permits. *fn1" Defendant's Statement of Material Facts As To Which There Should Be No Dispute ("Defendant's Facts"), para. 1. Although lower-level EPA officials viewed these applications favorably, the applications ultimately were rejected after lengthy public hearings and internal EPA consideration. Id. at paras. 2-9. Plaintiff did not appeal that rejection. Id. at para. 18.

 One consequence of plaintiff's applications, however, was that EPA reexamined its policy of issuing ocean incineration permits while writing the new ocean incineration regulations. On May 22, 1984, EPA announced that it would defer issuance of operating permits for ocean incineration until specific ocean incineration regulations were promulgated. Plaintiff's Motion for Summary Judgment, Affidavit of William Y. Brown, Director of Government Affairs, Waste Management, Inc. ("Brown Affidavit"), Exhibit B (Assistant Administrator's Determination May 22, 1984). On February 25, 1985, EPA published a "Research Strategy" for ocean incineration that contemplated issuance of research permits. 50 Fed. Reg. 51, 361. On May 24, 1985, plaintiff applied for a research permit. Id. at para. 5. That permit was finally denied on May 28, 1986, 51 Fed. Reg. 20,344 (June 4, 1986), and at that time EPA announced that it would defer consideration of research permits -- the only ocean incineration permits then available -- until regulations specifically governing ocean incineration were promulgated. Id. at 20, 346. Shortly thereafter, plaintiff filed this suit.

 Now before the Court are cross-motions for summary judgment. As there is no dispute over the material facts of this case, summary judgment is appropriate. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Laningham v. United States Navy, 259 U.S. App. D.C. 115, 813 F.2d 1236, 1241-42 (D.C. Cir. 1987). The Court has had the benefit of oral argument on those motions and of extensive briefing by the parties. The Court has also had the benefit of briefs submitted by amici curiae Texas, Louisiana, California, and Maryland, as well as oral argument by counsel for amicus curiae Texas. After carefully considering the briefs and arguments, the entire record in this case, including the relevant administrative record, and the underlying law, the Court has found that plaintiff's motion for summary judgment must be denied and defendant's motion for summary judgment must be granted.


 Plaintiff's motion argues that, by deferring all applications for ocean incineration permits, defendant has violated its own rules and the Administrative Procedure Act, 5 U.S.C. § 551 et seq. When stripped to their essentials, these contentions amount to a single claim that the agency has effectively and illegally revoked or rewritten the regulations governing ocean incineration by refusing to process permit applications until the forthcoming ocean incineration regulations are in place. Plaintiff's characterization of defendant's actions is incorrect.

 There can be no question that defendant's action constituted a rule. The Administrative Procedure Act defines a "rule" as

 5 U.S.C. § 551(4). Clearly, an agency statement describing conduct that the agency intends to follow in the future is a statement of "future effect designed to . . . prescribe law or policy . . . or procedure" and thus a rule. See, e.g., Thomas v. New York, 256 U.S. App. D.C. 49, 802 F.2d 1443, 1446 (D.C. Cir. 1986).

 In general, the Administrative Procedure Act requires public notice and comment whenever a rule is promulgated. Id. at § 553(b). The absence of notice and a period for public comment is the basis for plaintiff's contention that defendant's alleged revocation of the ocean incineration rules is illegal. If, however, the agency's action falls within the APA's exception for "interpretive rules, general statements of policy, or rules of agency ...

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