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E-M:/ Court remands and vacates EPA's exclusion of vessels from NPDES program



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FYI - An opinion just out from a district court in California that has sided with plaintiffs who challenged EPA's denial of a petition to withdraw a longstanding regulation that excluded discharges incidental to vessel operations from the NPDES program. The order states:   ". . . the Court hereby GRANTS plaintiff's request

for a permanent injunction ... and REMANDS this matter to EPA for further proceedings consistent with this Court's orders.  The blanket exemption for discharges incidental to the normal operation of a vessel, contained in 40 CFR section 122.3(a), shall be vacated as of September 30, 2008"  (emphasis added).

 

Snip: “Nevertheless, the Court is influenced by the fact that the regulation at issue has stood for the past 30 years, and by the fact that the effects of an immediate vacatur  would be so dramatic as to make such an option a practical impossibility. Indeed, not even plaintiffs request an immediate vacatur of the challenged regulation.  While the practical implications of the Court’s order make the Court wary of imposing a deadline on EPA that is too ambitious, the potential harm that ballast waters represent to our nation’s ecosystems leads the Court to conclude that there is an urgency to promulgating new regulations that EPA has not, to this point in the litigation, acknowledged. Thus, the Court must decide upon a time frame for vacating the regulation that balances the need for prompt action against the need to allow EPA adequate freedom to address a complicated issue.

 

 

Regards,

 

Mark Coscarelli

Public Sector Consultants