The opinion of the court was delivered by: PRATT
JOHN H. PRATT, UNITED STATES DISTRICT JUDGE.
This matter comes before the court on cross-motions for summary judgment. The matter has been extensively briefed.
In 1972 Congress passed the Marine Protection, Research and Sanctuaries Act, 33 U.S.C. §§ 1401-1444 (1977), commonly known as the "Federal Ocean Dumping Act" ("the Act"), to "prevent or strictly limit the dumping in ocean waters of any material
which would adversely affect human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities." 33 U.S.C. § 1401(b). To further these ends Congress prohibited most forms of ocean dumping unless authorized by a permit issued by the Environmental Protection Agency ("EPA"). See 33 U.S.C. § 1402 (b),(c),(e). Under the Act, EPA may issue two types of permits: short-term "research" permits or "special" (commercial operating) permits. The Act charges the EPA Administrator with promulgating regulations for "reviewing and evaluating" applications for ocean dumping permits, including consideration of specific environmental factors,
as well as alternatives to ocean dumping and incineration. EPA may issue a permit only after it determines that: (1) there are no practicable technological improvements that will reduce adverse impacts, and (2) there are no practicable alternatives available that have less adverse environmental impact or potential risk. 40 C.F.R. § 227.16(a)(1), (2)(1987). Although EPA issued its first permit in 1974, it did not publish regulations governing the issuance of both types of permits until 1977. See 40 C.F.R. §§ 220-233 (1986).
EPA has long interpreted the ban-without-permit provisions to include ocean incineration.
The EPA stated that
in any case where it can reasonably be anticipated that incineration of wastes at sea will result in any such material, or emission from the incineration of such material, entering ocean waters, such incineration will require a permit under the Ocean Dumping Act. (emphasis supplied).
39 Fed. Reg. 37,058 (October 17, 1974).
Present Posture of Regulations
In November 1983 two public hearings were held on a commercial waste disposal company's application for both special (commercial) and research ocean incineration operating permits.
Chem Waste's application triggered EPA solicitation of public comments both on the application and "on the principles [to be] used in developing the proposed permits and their role as a model for specific criteria regulating ocean incineration." Defendants' Statement of Material Facts Not in Dispute, para. 4 p. 2. The intense public interest in the subject is reflected by the fact that over 6,000 people registered at the two hearings. In May 1984 Chem Waste's operational application was deferred pending promulgation of rules governing ocean incineration. In February 1985, after reviewing the comments received at the hearings, EPA published proposed ocean incineration research rules. 50 Fed. Reg. 8222 (February 28, 1985). During the second comment period the Agency received over 5,000 separate comments relating to the proposed rules. In reaction to the public's "widespread and critical" response to some of the proposed regulations, including the permitting section, the Agency decided to solicit additional comment.
In the interim, its application for a commercial permit having been deferred and its application for a research permit having been denied, 51 Fed. Reg. 20,344 (June 4, 1986), Waste Management Inc., Chem Waste's parent company, filed suit in Federal District Court in the District of Columbia to compel EPA to issue a research permit to Chem Waste. Waste Management, Inc. v. United States Environmental Protection Agency, 669 F. Supp. 536 (D.D.C. 1987). Waste Management claimed that the agency's deferral pending promulgation of ocean incineration rules was "conduct that the agency intended to follow in the future," and as such constituted rulemaking. Plaintiff asserted that the Agency had violated the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., which requires public notice and comment whenever a substantive rule is promulgated. Waste Management, 669 F. Supp. at 539. A rule is categorized as "substantive" if it "substantially affects" or "jeopardizes" the ultimate interest of the parties. See Environmental Defense Fund v. Gorsuch, 230 U.S. App. D.C. 8, 713 F.2d 802, 815 (D.C. Cir. 1983); Waste Management, 669 F. Supp. at 539. On the other hand, under the APA, "interpretive rules, general statement of policy, or rules of agency organization, procedure or practice," 5 U.S.C. § 553(b)(A) (1977) are exempt from the notice and comment requirements. On September 16, 1987 the federal trial judge found that EPA's temporary permit freeze fell within that exception on the ground that the Agency's deferral was procedural rather than substantive rulemaking. Waste Management, 669 F. Supp. at 539-40. The court held that because the effect on Chem Waste was temporary, its ultimate interests were not fully compromised. Thus, the trial judge held, the Agency's action was exempt from the notice and comment requirement.
Following this decision, however, in February 1988, in an action the Agency describes as a shift of resources from ocean disposal into other environmental programs with higher priority, EPA announced that it would completely, rather than temporarily, suspend development of at-sea incineration regulations.
One month later, on March 9, 1988, plaintiff Seaburn Inc. ("Seaburn"), a commercial waste disposal company, filed the present action. Seaburn is self-defined as a company "engaged . . . in the research, development, construction and operation of vessels and equipment" for ocean incineration of liquid hazardous wastes. Seaburn originally challenged EPA's decision to suspend its evaluation of Seaburn's application for an ocean incineration permit pending development of final ocean incineration regulations. Plaintiff argued that an indefinite suspension of permit review is tantamount to revocation of existing regulations. As such, its ultimate interests have been compromised without the benefit of the APA's notice and comment procedures.
Recently an important legislative development has overtaken this case. Since the filing of this litigation, Congress passed the Ocean Dumping Ban Act of 1988 ("Dumping Ban Act"), Pub. L. No. 100-688, Title I, 102 Stat. 4139, amending the original Marine Protection, Research and Sanctuaries Act of 1972. Section 1002 of the Dumping Ban Act deletes part of § 104A and adds a new section, 104B, which prohibits the issuance of new dumping permits and phases out all sewage sludge and industrial waste dumping by 1991. ...