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Clean Ocean Action v. York

ELR Citation: 25 ELR 21236
Nos. No. 94-5489, 57 F.3d 328/41 ERC 1025/(3d Cir., 06/12/1995) Aff'd in part, rev'd in part

The court affirms a district court order denying citizen groups a preliminary injunction to stop ocean dumping of dioxin-contaminated materials dredged from the New York-New Jersey Port Authority's Newark/Port Elizabeth facility. The court first holds that the plain meaning of the U.S. Environmental Protection Agency's (EPA's) regulations under the Marine Protection, Research, and Sanctuaries Act (MPRSA), 40 C.F.R. pt. 227, is that the dumping of materials containing dioxin is prohibited unless the dioxin is present only as a trace contaminant; that dioxin can qualify as a trace contaminant only when it will not cause significant undesirable effects; and that the determination whether dioxin will cause significant undesirable effects is to be made by conducting specified tests, including bioassays in the suspended particulate and solid phases of the waste on specified types of marine organisms. The district court found that no bioassays were conducted on the suspended particulate phase of the waste and that bioassays were performed on the solid phase with only one benthic species, not with the three species required by 40 C.F.R. 227.27(d). The court notes that EPA's reservation of discretion to determine how to conduct tests cannot be mad as a reservation of discretion to determine whether to conduct tests required by the unequivocal language of its regulations. The court holds that the government's interpretation of the regulations is inconsistent with the plain meaning of the regulations' language. Although the MPRSA gives EPA broad rulemaking authority under which it could have reserved to itself the discretion it now claims, the Agency simply failed to do so. Moreover, a guidance document cannot be given the effect of amending the regulations. Thus, the court holds that the district court erred in holding that the government complied with EPA's regulations. The court holds, however, that the district court did not abuse its discretion when it weighed the balance of harms and decided to grant a preliminary injunction. The port's functioning is of extraordinary economic importance to the ocean carriers and longshoremen directly affected by the curtailment and eventual cessation of activities and to the entire region, which is already suffering from serious economic conditions. The catastrophic injuries to these interests and the public at large outweigh the minimal or nonexistent injuries to the citizen groups.

[A previous decision in this litigation is published at 25 ELR 20664.]

Counsel for Appellants
Gordon N. Litwin
Ansell, Zaro, Bennett & Grimm
60 Park Pl., Newark NJ 07102

Counsel for Appellees
Albert M. Ferlo Jr.
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Sloviter, Alito, and Schwarzer,* JJ.