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New York, City of v. EPA

Citation: 11 ELR 20763
No. No. 80-1677, 15 ERC 1965/(S.D.N.Y., 04/14/1981)

The court rules that ocean dumping of sewage sludge may continue beyond the December 31, 1981 deadline under the Marine Protection, Research, and Sanctuaries Act (MPRSA) unless the Environmental Protection Agency (EPA) determines, on a case-by-case basis, that dumping would unreasonably degrade the marine environment. In March 1980 EPA granted plaintiff an interim permit, with a December 31, 1981 deadline, for sewage sludge dumping in the New York Bight. Plaintiff unsuccessfully sought numerous extensions of the 1981deadline and sued to compel EPA to consider evidence that the adverse consequences and costs of a short-term land disposal alternative would far exceed the effects of continued ocean dumping.EPA contended that the 1977 amendments to the MPRSA absolutely barred all ocean dumping after December 31, 1981. The city argued that the amendments barred only that dumping which would unreasonably degrade the marine environment. In determining whether dumping is unreasonable, the city further contended that EPA must evaluate the cost and potential hazards of land-based alternatives and the effects of proposed dumping upon the particular site. Rejecting a claim that the city is estopped from challenging the regulations, the court initially determines that EPA has long been aware of plaintiff's opposition to the Agency's interpretation of the Act, and EPA cannot claim detrimental reliance upon plaintiff's forbearance from suit. After reviewing the statutory language and legislative history of 33 U.S.C. § 1412(a) of the MPRSA, the court rules that the Act proscribes only such ocean dumping which on balance is unreasonably harmful. Thus, any ocean dumping which "unreasonably degrades" the environment must end by December 31, 1981. The regulations adopted pursuant to MPRSA cannot stand because they require cessation of all potentially harmful dumping regardless of its reasonableness under the circumstances and because EPA applied the sole factor of technological feasibility in imposing the 1981 deadline. Specifically, the court holds that the regulations are arbitrary and capricious because they (1) conclusively presume that sewage sludge dumping will adversely effect the Bight, (2) assume that practicable alternatives to the ocean dumping of sludge exist in all instances, and (3) conclusively presume that the exhorbitant cost of available technology is justified by the danger of continued dumping. In addition, EPA forced plaintiff to proceed with the interim steps of a land-based alternative without evaluating actual and potential environmental effects of land disposal. Therefore, since the 1981 deadline remains intact for ocean dumping that will unreasonably degrade the environment, EPA must determine the validity of plaintiff's claims as to the environmental consequences of its ocean dumping versus land-based disposal. Accordingly, the court grants plaintiff's motion for summary judgment.

Counsel for Plaintiff
Allen G. Schwartz, Corp. Counsel; Thomas W. Bergdall, Stephen R. Kramer, Ass't Corp. Counsel
Municipal Bldg., New York NY 10007
(212) 566-3929

Counsel for Defendants
John S. Martin Jr., U.S. Attorney; Peter R. Paden, Ass't U.S. Attorney
One St. Andrew's Plaza, New York NY 10007
(212) 791-0055

Bruce C. Rashkow, Rebecca A. Donellan; James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2750

Diane L. Olsson
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511