D.C. Circuit Remands EPA's Ocean Dumping Regulations; Corps Ordered to Prepare Programmatic EIS

Amidst growing concern over the ocean dumping of increasing volumes of wastes of all kinds, Congress enacted the Marine Protection, Research, and Sanctuaries Act of 1972,¹ Title I of which is known as the Ocean Dumping Act.² The Act declares a national policy "to prevent or strictly limit the dumping into ocean wasters of any material which would adversely affect human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities," and sets up a federal program for regulating these activities.³ Yet despite its laudatory objectives, the Act has failed to bring about a significant change in the volume or toxicity of materials dumped into the sea.⁴

Apparently dissatisfied with the progress which had been made toward protecting the marine environment, Congress amended the Act in 1977 to ban the dumping of sewage sludge after December 31, 1981.⁵ In many quarters, however, there remains substantial dissatisfaction [10 ELR 10178] with the Environmental Protection Agency's (EPA's) and the Corps of Engineers' implementation of the Act with respect to dredged wastes. After years of dogging the agencies in federal court, Congress, and elsewhere, the National Wildlife Federation (NWF) recently obtained two somewhat favorable judgments which may, it hopes, lead to renewed regulatory efforts. While the opinions themselves offer little to support such a sanguine view, they do provide a glimpse of the current state of this regulatory program, and they permit an assessment of who deserves responsibility and credit for thefailures and accomplishments that have occurred to date.

Although ruling in NWF's favor in most respects, the District of Columbia Circuit Court of Appeals, in National Wildlife Federation v. Costle,⁶ rebuffed its claim that EPA was illegally applying less stringent standards to dredged than to non-dredged wastes.⁷ It simply remanded the regulations to EPA for a more thorough examination of the distinction in the regulations. In National Wildlife Federation v. Benn,⁸ the Corps was directed to prepare a programmatic environmental impact statement (EIS) on dumping in the New York Bight, but dumping was not halted pending its preparation. Further, the court upheld the Corps' procedures for testing and evaluating the environmental effects of dredged materials before permitting their disposal.

Statutory Background

Prior to enactment of the Ocean Dumping Act, regulation of the ocean disposal of wastes was almost nonexistent. Although dumping of "refuse of any kind" within the three-mile territorial limit without the permission of the Corps of Engineers is prohibited by § 13 of the Rivers and Harbors Act of 1899,⁹ the Corps did not actively exercise its permitting authority over marine pollution and instead placed emphasis on regulating obstructions to navigation under §§ 9 and 10 of the Act.¹⁰ Furthermore, with the exception of the New York, Baltimore, and Hampton Roads, Virginia harbors,¹¹ the Act did not vest the Corps with jurisdiction to regulate ocean dumping outside the three-mile limit where most dumping actually occurs.

Regulatory neglect of marine pollution came to an end in the early 1970s, spurred by a report¹² from the Council on Environmental Quality (CEQ) which stressed the need for a comprehensive policy to ban unregulated dumping and strictly limit dumping of harmful materials. In response, Congress passed the Marine Protection, Research, and Sanctuaries Act of 1972.¹³ Title I of the Act prohibits all transportation¹⁴ for dumping and all dumping of materials within 12 nautical miles of the United States, unless authorized by permit.¹⁵ The Act divides the responsibility for controlling dumping between the Corps and EPA,¹⁶ with EPA receiving most of the authority. The statute directs EPA to establish criteria for reviewing permit applications and for designating dumping sites.¹⁷ These criteria are to be based on evaluation factory specifically enumerated in the Act.¹⁸ EPA is also authorized to designate recommended sites where dumping is either allowed or specifically prohibited, and it may [10 ELR 10179] issue permits for specific dumping activities.¹⁹ However, EPA is not authorized to issue permits for dredged wastes, which fall within the purview of the Corps.²⁰ Yet the Corps' authority is constrained in two ways. First, it may only issue a permit after finding that the dumping will meet EPA's criteria and will not "unreasonably degrade or endanger human health, welfare …, or the marine environment …."²¹ Second, EPA may veto the Corps' permit if it is not in compliance with the criteria.²² However, the Corps may request a waiver if it cannot comply with these restrictions.²³ The Corps may make independent determinations regarding the need for dumping, appropriate locations, and other possible methods of disposal.²⁴

EPA's ocean dumping regulations, which were promulgated in 1973 and revised early in 1977,²⁵ contain the criteria to be applied by both the Corps and EPA in evaluating permit applications for dumping²⁶ and the location of ocean disposal sites.²⁷

CEQ, in its 1970 report on ocean dumping, also recommended development of a convention to achieve international control of ocean dumping. After several years of negotiation,²⁸ the United States and 60 other nations adopted the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter.²⁹ Parties to the convention pledged to take all practicable steps to prevent the pollution of the sea by the dumping of waste "that is liable to create hazards to human health, to harm living resources and marine life, to damage amenities, or to interfere with other legitimate uses of the sea."³⁰ More significantly, the Convention established a set of 21 factors to be applied by signatory states in establishing the criteria governing the issuance of permits and location of dump sites.³¹ The Ocean Dumping Act was therefore amended in 1974 to incorporate the additional factors set out in the Convention. These new factors are to be considered by the Administrator in developing the criteria to be applied to permit applications and dump site locations. As a result of the 1974 amendments, the Ocean Dumping Act³² now bans the dumping of highly dangerous substances listed in Annex I of the Convention, such as high-level radioactive materials, materials produced for biological and chemical warfare, organohalogens, mercury and mercury compounds, and cadmium and cadmium compounds.³³ The dumping of wastes containing other heavy metals and low-level radioactive wastes, listed in Annex II, are allowed only with a permit.³⁴ Dredged wastes, however, may be dumped despite contamination with trace amounts of certain substances listed in Annex I.³⁵

NWF v. Costle

NWF first challenged EPA's regulations and criteria implementing the Ocean Dumping Act in 1975, alleging that they violated both the Act and the Convention. The regulations were revised while the case was awaiting trial, and the revisions prompted the court to grant summary judgment for the government.³⁶ Although the revisions addressed a substantial number of NWF's claims, the plaintiff nevertheless appealed the decision to dismiss its remaining claims to the District of Columbia Circuit Court of Appeals.

On appeal NWF claimed that EPA in structuring its dumping criteria had illegally failed to incorporate all of the evaluation factors specified in the Ocean Dumping Act and the Convention and that as a result the regulations did not impose meaningful controls over site designations and dumping permits. NWF argued that both the Act and the legislative history indicate that these factors must be "applied" by EPA, not just "considered" and then ignored in establishing the criteria. NWF also objected that the revised regulations and criteria establish [10 ELR 10180] different and less restrictive requirements for dredged material than for non-dredged wastes, arguing that this was contrary to law in two respects. First, the Ocean Dumping Act requires the evaluation factors to be applied to permit applications for all wastes, making the less stringent requirements for dredged materials unlawful. Second, EPA violated the Administrative Procedure Act (APA) by distinguishing between the two types of wastes without any basis or justification in the record. In addition, NWF challenged EPA's approval of 140 interim ocean disposal sites without (1) completion of prior studies of the characteristics of the dumping sites as allegedly required by the Convention and (2) considering its own criteria established pursuant to the Act.

The District of Columbia Circuit Court of Appeals affirmed the district court's dismissal of all but one of NWF's five counts.³⁷ The court first upheld EPA's interim approval of 140 dumping sites, agreeing that neither the Act nor the Convention prohibited interim site designation pending completion of environmental studies.³⁸ Whether the criteria should be applied only to permanent site designations or to interim designations as well is not clear from the Act. Since studies have been completed for only three sites in three years, NWF's interpretation of the Act would require the virtual cessation of all ocean dumping until site studies could be completed. In the court's view, such a result was clearly contrary to the intent of Congress as shown in the legislative history.³⁹ Furthermore, in response to NWF's argument that the interim site designations violated the even more restrictive requirements of the Convention, the court took the view that the evaluation factors established in the Convention are to be applied in establishing or revising criteria, not in the processing of permit applications or the designation of dumping sites.⁴⁰

NWF also argued that the Corps' designation of dredged waste dump sites constituted a rule making and thus was subject to the notice and comment requirements of the Administrative Procedure Act.⁴¹ EPA agreed that the Corps' site designations constitute rule making under the APA, but it urged that the Corps' own regulations implementing that authority satisfy the APA. The court sided with neither EPA nor NWF. Although it declared that the Corps' regulations failed to satisfy the notice and comment provisions of the APA, the court held that the issue was not yet ripe for review because the Corps had yet to issue a permit for dumping pursuant to the EPA regulations.

The major issue confronting the court concerned EPA's distinction between dredged and non-dredged wastes. The regulations provide that the Corps must apply only certain of the listed criteria in evaluating applications for dumping permits for dredged wastes.⁴² NWF argued that there was no justification in either the Act or the legislative history for excluding dredged wastes from criteria.⁴³ NWF also objected to EPA's decision to require less extensive testing procedures for dredged than for non-dredged material and to establish less stringent site designation criteria and evaluation procedures.⁴⁴

The court disagreed. In its view there is no real limitation on EPA's authority to conclude that certain factors may not be applicable to particular classes of materials.Thus, once EPA has considered an evaluation factor in establishing the criteria it retains wide discretion to conclude that the factor is not appropriately applied to dredged wastes. If Congress intended to require inclusion of all the evaluation factors, the court noted, it would have said so explicitly.

Finally, the court acknowledged the merit in NWF's argument that EPA's failure to explain the basis for the distinction between the two types of wastes was fatal to the revised criteria and regulations. The APA requires that an agency engaged in informal rule making must provide "a concise general statement of the basis and purpose" of the rule.⁴⁵ The court pointed out that a major issue throughout the process of establishing the regulations and criteria was the distinction between dredged and non-dredged materials, yet nowhere in the regulations is there [10 ELR 10181] any explanation for the distinction. The court thus remanded the case to EPA to promulgate new revised regulations and criteria with an adequate justification for treating the two types of wastes differently.

NWF v. Benn

In National Wildlife Federation v. Benn plaintiffs charged that the Corps of Engineers had granted permits for dumping dredged wastes in the New York Bight without adhering to the applicable testing and evaluation procedures.⁴⁶ In this context plaintiffs argued that the views of the Corps in construing the criteria⁴⁷ should not be given deference by the reviewing court since the criteria were written by EPA, not the Corps. Finally, the plaintiffs contended that the Corps had violated the National Environmental Policy Act (NEPA)⁴⁸ by failing to prepare a programmatic environmental impact statement considering the cumulative impact of ocean dumping in the New York Bight.

The district court held for the defendant on the first two issues but found that the Corps had violated NEPA. After disposing of several procedural issues,⁴⁹ the court declared that in construing the criteria it is proper to defer both to the interpretation of the agency that promulgated the regulations and to the agency responsible for their administration. Accordingly, the court determined that the Corps' procedures for evaluating the environmental impacts of dredged materials were consistent with the Act. Dismissing plaintiffs' argument that the Corps' methods of assessing the composition of material proposed to be dumped would allow excessively contaminated material to be dumped, the court concluded that the Corps has a certain degree of discretion to adopt testing and evaluation procedures.

Finally, the court found that the Corps had violated NEPA by treating individual ocean dumping projects as "isolated single-shot ventures" and not preparing a programmatic EIS covering dumping of dredged wastes in the New York Bight, pointing out that NEPA requires a comprehensive impact statement where proposed actions will have significant cumulative effects. The court rejected defendants' argument that the NEPA claim cannot be resolved absent a challenge to a specific permit. Not only do the Corps' own regulations provide for the preparation of an "umbrella EIS" covering several related projects, but the tremendous amount of dredged materials dumped into the site provides a "concrete factual context on which to base a comprehensive EIS."⁵⁰ Considering the numerous applications for ocean dumping permits submitted to the Corps, the court concluded that the need for a programmatic EIS can be determined without the plaintiffs singling out specific proposals as the sole object of their claim.

Conclusion

The next few years will see sharply increased pressures to dump wastes at sea.⁵¹ Though the nation is using increasing quantities of resources, a plethora of new regulatory schemes such as the Clean Air Act,⁵² the Federal Water Pollution Control Act (FWPCA),⁵³ and the Resource Conservation and Recovery Act⁵⁴ permit less and less of the spoils to be discharged into inland water, air, and soil. Further, upgrading of sewage treatment plant performance under the FWPCA, which mandates secondary treatment of all municipal wastes by 1983,⁵⁵ will spur the generation of more sewage sludge. Coastal cities have long been bedeviled by this problem⁵⁶ and will surely find that their woes are multiplying.

There is little reason to expect that Benn and Costle will produce major changes in EPA's and the Corps' regulation of ocean dumping. Although the court in Costle vacated EPA's separate treatment of dredged and non-dredged materials it emphasized that the Ocean Dumping Act provides the Agency with ample authority to apply different criteria and remanded only for the purpose of requiring the Agency to justify its distinction in writing.⁵⁷ The Corps of Engineers will almost certainly not be making any substantive changes in its procedures for implementing the Ocean Dumping Act as a result of the Benn decision, since the district court repeatedly deferred to the agency's expertise in implementing its responsibilities.

If either of the opinions will have significant long term impacts, it will probably be the ruling in Benn that a programmatic EIS is required for the Corps' dumping program. It is hoped that such a document will contain a thorough assessment of dumping practices and their cumulative environmental impact. On the basis of the information, Congress and the agencies may wish to reappraise [10 ELR 10182] whether the current regulatory system is sufficiently strict.⁵⁸

The fact is, however, that the existing system was not intended by either the signatories to the Convention or Congress to establish the kind of stringent regime that exists with respect to other environmental regulatory programs. For example, the 1972 Convention imposed few rigorous obligations on the signatories.⁵⁹ The Ocean Dumping Act is hardly more Draconian, as it gives the Corps the power to regulate itself and vests both it and EPA with wide discretion to permit dumping as they see fit. Thus, neither EPA nor the Corps can be condemned for failing to regulate, at least with respect to dredged wastes, as aggressively as some might wish. This implicit conclusion is the most striking aspect of Benn and Costle.

1. 33 U.S.C. §§ 1401-1444, ELR STAT. & REG. 41821.

2. 33 U.S.C. §§ 1401-1421, ELR STAT. & REG. 41821. Title II of the Act requires the Commerce Department to conduct a research and monitoring program on the effects of ocean-dumping and report annually to Congress. 33 U.S.C. § 1441-1444, ELR STAT. & REG. 41824. Title III of the Act permits the Secretary of Commerce to designate marine sanctuaries. 16 U.S.C. §§ 1431-1434, ELR STAT. & REG. 41824:1.

3. 33 U.S.C. § 1401(b), ELR STAT. & REG. 41821.

4. More than 130 million tons of waste materials, 118 million of which consisted of material dredged from harbors and rivers, were dumped off United States shores in 1974, triple the amount dumped in 1968.COUNCIL ON ENVIRONMENTAL QUALITY, SEVENTH ANNUAL REPORT — ENVIRONMENTAL QUALITY 279 (1976). Although efforts to stem ocean dumping of industrial wastes have met with increasing success in recent years, 8.3 million tons of industrial and municipal wastes, principally sewage sludge, were nevertheless loaded onto barges and dumped several miles from the nation's coasts in 1978, more than 90 percent dropped into the Atlantic Ocean, predominantly in the New York Bight. COUNCIL ON ENVIRONMENTAL QUALITY, TENTH ANNUAL REPORT — ENVIRONMENTAL QUALITY 162 (1979). Municipal sewage sludge disposal increased between 1973 and 1978 while industrial waste has dropped by 50 percent. The New York Bight is an area of the Atlantic extending from the tip of Long Island to Cape May, New Jersey and out to the edge of the Continental Shelf. Considered to be the most polluted coastal area in the United States, dumping has occurred in this area since 1948.

5. 33 U.S.C. § 1412a(a), ELR STAT. & REG. 41822. For a discussion of the statutory deadline, see Comment, Ocean Dumping Revisited: New Statutory Deadline May Not stop Sea Disposal of Sewage Sludge, 7 ELR 10226 (1977). In addition, the House of Representatives is now considering an Ocean Dumping Authorization bill for fiscal year 1981 which would amend the Marine Protection, Research, and Sanctuaries Act to also ban dumping of industrial waste after December 31, 1981 unless a public health emergency exists and then only with a permit. See H.R. 6616, H.R. REP. NO. 96-894, pt. 1, 96th Cong., 2d Sess. (1980).

6. __ F.2d __, 10 ELR 20742 (D.C. Cir. July 2, 1980).

7. Dredged wastes are any material excavated or dredged from the navigable waters of the United States. 33 U.S.C. § 1402(i), ELR STAT. & REG. 41821. As much as one-third of dredged materials are contaminated with highly toxic chemicals. COUNCIL ON ENVIRONMENTAL QUALITY, REPORT TO THE PRESIDENT, OCEAN DUMPING: A NATIONAL POLICY 3 (1970). Non-dredged wastes include industrial materials (e.g., toxic chemicals), sewage sludge, construction debris, municipal solid waste, and radioactive wastes.

8. 491 F. Supp. 1234, 10 ELR 20755 (S.D.N.Y. June 12, 1980).

9. 33 U.S.C. § 407, ELR STAT. & REG. 41142.

10. 33 U.S.C. §§ 402, 403, ELR STAT. & REG. 41141, 41142.

11. The Supervisory Harbors Act of 1888 grants special authority to the Corps to issue permits for the transportation of materials from these port areas for dumping into the ocean beyond the three-mile limit. 33 U.S.C. §§ 441-451b.

12. CEQ report, supra note 7.

13. 33 U.S.C. §§ 1401-1444, ELR STAT. & REG. 41821.

14. By regulating the transportation of waste from ports as well as the dumping, the United States may extend its regulatory powers beyond that territorial sea and contiguous zone without offending international law principles. See generally, Lettow, The Control of Marine Pollution in FEDERAL ENVIRONMENTAL LAW, 649-72 (E. Dolgin & T. Guilbert, eds. 1974).

15. 33 U.S.C. § 1411, ELR STAT. & REG. 41821. Ocean pollution is also regulated by EPA pursuant to the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1251 et seq. ELR STAT. & REG. 42101. The FWPCA covers any discharge of any pollutant into "navigable waters," including the territorial seas of the United States, which extend a distance of three miles from the coast, plus any discharge from pipes or outfalls regardless of their termination point. See Pacific Legal Foundation v. Quarles, 440 F. Supp. 316, 7 ELR 20653 (C.D. Cal. 1977).

16. The Act also delegates responsibility to the Coast Guard to conduct surveillance and other appropriate enforcement activity to prevent unlawful transportation of material for dumping, or unlawful dumping. 33 U.S.C. § 1417(c), ELR STAT. & REG. 41823.

17. 33 U.S.C. § 1412(a), ELR STAT. & REG. 41821.

18. The factors are as follows:

(A) The need for the proposed dumping.

(B) The effect of such dumping on human health and welfare, including economic, esthetic, and recreational values.

(D) The effect of such dumping on marine ecosystems, particularly with respect to —

(i) the transfer, concentration, and dispersion of such material and its byproducts through biological, physical, and chemical processes.

(ii) potential changes in marine ecosystem diversity, productivity, and stability, and

(iii) species and community population dynamics.

(E) The persistence and permanence of the effects of the dumping.

(F) The effect of dumping particular volumes and concentrations of such materials.

(G) Appropriate locations and methods of disposal or recycling, including land-based alternatives and the probable impact of requiring use of such alternate locations or methods upon considerations affecting the public interest.

(H) The effect on alternate uses of oceans, such as scientific study, fishing, and other living resource exploitation, and nonliving resource exploitation.

(I) In designating recommended sites, the Administrator shall utilize wherever feasible locations beyond the edge of the Continental Shelf.

33 U.S.C. § 1412(a), ELR STAT. & REG. 41821.

19. 33 U.S.C. §§ 1412(c), 1412(b), ELR STAT. & REG. 41822.

20. 33 U.S.C. § 1413(a), ELR STAT. & REG. 41821. The Ocean Dumping Act's separate treatment of dredged and non-dredged wastes was the subject of intense controversy in Congress before the Act was passed. See, e.g., H.R. REP. NO. 1546, 92d Cong., 2d Sess., reprinted in [1972] U.S. CODE CONG. & AD. NEWS 4264. The division of regulatory authority between EPA and the Corps was initially intended to promote the application of uniform criteria without hampering ongoing dredging operations since the Corps traditionally regulated dumping of these materials. In practice, however, the scheme encourages differential regulation because EPA is responsible for protecting the environment, while the Corps is concerned mainly with navigation. Even more important, a conflict of interest arises because the Act vests in the Corps, the nation's largest major producer and dumper of dredged spoils, responsibility to regulate itself. See generally, Lumsdaine, Ocean Dumping Regulation: An Overview, ECOLOGY L.Q. 753 (1976).

21. 33 U.S.C. § 1413(a), ELR STAT. & REG. 41822. The Secretary of the Army's permitting authority has been formally delegated to the Corps' Chief of Engineers, and through him/her to the District Engineers.

22. 33 U.S.C. § 1413(c), ELR STAT. & REG. 41822.

23. 33 U.S.C. § 1413(d), ELR STAT. & REG. 41822.

24. 33 U.S.C. § 1413(b), ELR STAT. & REG. 41822.

25. See 40 C.F.R. pts. 220-229, ELR STAT. & REG. 46305. See Comment, Ocean Dumping, the Revised EPA Criteria, and the National Soil Fertility Program, 6 ELR 10144 (1976).

26. See 40 C.F.R. pt. 227, subpts. B-E and G, ELR STAT. & REG. 46316:3, for the revised criteria for evaluating permit applications.

27. See 40 C.F.R. pt. 228, ELR STAT. & REG. 46316:9, for the revised criteria for management and designation of disposal sites for ocean dumping.

28. The United Nations Stockholm Environmental Conference's Intergovernmental Working Group on Marine Pollution (IWGMP) held two international meetings in 1971. A two week special conference was then held in London in October of 1972, attended by 92 nations, which resulted in the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter. See, Lettow, supra note 14.

29. T.I.A.S. No. 8165, ELR STAT. & REG. 40329.

30. Convention, supra note 29, art. I, ELR STAT. & REG. 40329.

31. See id., Annex III, ELR STAT. & REG. 40331-2.

32. Section 102(a) of the Act specifically requires the EPA Administrator to apply the Convention standards, including the Annexes in establishing or revising the criteria. 33 U.S.C. § 1412(a), ELR STAT. & REG. 41821.

33. See id., art. IV, Annex I, ELR STAT. & REG. 40329, 40331. Emergency dumping of such materials is permitted under special circumstances.

34. See id., art. IV, Annex II, ELR STAT. & REG. 40329, 40331.

35. See id., art. IV, Annex I, ELR STAT. & REG. 40329, 40331.

36. National Wildlife Federation v. Train, No. 75-1927 (D.D.C. 1977) (without written opinion).

37. National Wildlife Federation v. Costle, __ F.2d __, 10 ELR 20742 (D.C. Cir. July 2, 1980).

38. Interim ocean dumping sites are listed at 40 C.F.R. § 228.12, ELR STAT. & REG. 46316:11.

39. The court pointed out that Congress was concerned that implementation of the Act did not interfere unduly with dredging operations:

It is expected that until such time as economic and feasible alternative methods for disposal of dredge material are available, no unreasonable restrictions shall be imposed on dredging activities essential for the maintenance of interstate and foreign commerce, and that, consistent with the intent of this act, the disposal activities of private dredgers and the Corps of Engineers will be treated similarly.

10 ELR 20742, [quoting from] H.R. REP. NO. 92-1546, 92d Cong., 2d Sess. 17 (1972).

40. NWF's argument was based on Article IV, Paragraph 2 of the Convention, which states:

Any permit shall be issued only after careful consideration of all the factors set forth in Annex III, including prior studies of the characteristics of the dumping site, as set forth in Sections B and C of that Annex.

ELR STAT. & REG. 40329.However, § 102(a) of the Act provides that "the Administrator, in establishing or revising such criteria, shall apply the standards and criteria binding upon the United States under the Convention, including its Annexes." 33 U.S.C. § 1412(a), ELR STAT. & REG. 41822. Thus the court chose to disregard the Convention's restriction on permit issuance.

41. 5 U.S.C. § 553, ELR STAT. & REG. 41002.

42. The regulations exempt dredged material permit applications from four criteria setting limits on the dumping of specific wastes or waste constituents, on the disposal rates of toxic wastes, on containerized wastes, and on insoluble wastes. 40 C.F.R. § 227.1(b), ELR STAT. & REG. 46316:3.

43. NWF was especially concerned with the exemption for dredged wastes from the criteria concerning materials that contain microorganisms dangerous to human health, fish, and wildlife, 40 C.F.R. § 227.7(c), ELR STAT. & REG. 46316:5, and material containing oxygen-consuming constituents, 40 C.F.R. § 227.7(e), ELR STAT. & REG. 46316:5.

44. Specifically, NWF challenged EPA's exemption of dredged waste sites from 40 C.F.R. §§ 228.10 and 228.11, ELR STAT. & REG. 46316:11, which deal with evaluating disposal impact and modification in disposal use, and § 228.4(e), which (1) allows dredged dump sites studies to be based on uncompleted research, (2) does not require an environmental impact statement, and (3) exempts the Corps' dump site designations from the rule-making requirements of the APA. Appellant's brief at 39-40.

45. 5 U.S.C. § 553(c), ELR STAT. & REG. 41002.

46. See 40 C.F.R. pts. 227 and 228, ELR STAT. & REG. 46316:3, 46316:9.

47. A joint EPA-Corps committee prepared an Implementation Manual containing detailed procedures and the New York District of the Corps of Engineers issued a Guidance Document based on the criteria in Parts 227 and 228 of EPA's regulations delineating test results to be furnished by the applicant to the Corps.

48. 42 U.S.C. §§ 4321-4361, ELR STAT. & REG. 41009.

49. The court ruled that the plaintiffs' claims were ripe for review because they challenged the Corps' specific procedures and policies for issuing permits. The hardships that would result to users of the New York Bight if judicial review were withheld was also deemed sufficient to render their claims ripe for review. In addition, the court held that joinder of EPA was unnecessary because NWF only asked the court to clarify what the criteria require. Furthermore, the Corps' current interpretation and application of Implementation Manual procedures were found to be consistent with the statutory criteria.

50. National Wildlife Federation v. Benn, 491 F. Supp. 1234, 10 ELR 20755 (S.D.N.Y. June 12, 1980).

51. See COUNCIL ON ENVIRONMENTAL QUALITY, TENTH ANNUAL REPORT — ENVIRONMENTAL QUALITY 162 (1979).

52. 42 U.S.C. §§ 7401-7642, ELR STAT. & REG. 42201.

53. 33 U.S.C. §§ 1251-1376, ELR STAT. & REG. 42101.

54. 42 U.S.C. §§ 6901-6987, ELR STAT. & REG. 41901.

55. 33 U.S.C. § 1311(b)(2)(B), ELR STAT. & REG. 42123.

56. Cf. National Sea Clammers Association v. City of New York, __ F.2d __, 10 ELR 20155 (3d Cir. Feb. 5, 1980); Township of Long Beach v. City of New York, 445 F. Supp. 1203, 8 ELR 20453 (D.N.J. 1978); Pacific Legal Foundation v. Quarles, 440 F. Supp. 316, 7 ELR 20653 (C.D. Cal. 1977); Kilroy v. Costle, 614 F.2d 225, 10 ELR 20271 (9th Cir. Feb. 25, 1980), appeal docketed, No. 79-1746 (U.S. May 3, 1980); Pacific Legal Foundation v. Andrus, Civ. No. C-78-3464-AAH(SX) (C.D. Cal. 1979) appeals docketed, Nos. 79-3472, -3566, -3661 (9th Cir.)

57. Some changes may be forthcoming at least with respect to sewage sludge ocean dumping criteria, since EPA recently announced that it is again in the process of revising its regulations. Air/Water Pollution Report 375 Sept. 22, 1980.

58. Congress may also wish to reevaluate dumping practices based on a comprehensive national survey of public opinion on environmental issues recently released by the Council on Environmental Quality, which reveals that 57 percent of the persons polled believe that the government should prohibit the disposal of hazardous chemical wastes in the ocean. Final Results of the Resources for the Future, National Environmental Survey for the President's Council on Environmental Quality, Question 38 (Aug. 1980) (Released Oct. 9, 1980).

59. T.I.A.S. No. 8165, ELR STAT. & REG. 40329. The most rigorous requirement is the ban on the dumping of certain substances listed in Annex I of the Convention; however, dredged wastes may be dumped despite contamination with "trace" amounts of these substances. EPA's regulations do not clearly define what constitutes trace amounts.