The Battle Over Ocean Dumping

Samuel A. Bleicher

Samuel A. Bleicher is an attorney in the Washington office of the law firm of Blank, Rome, Comisky & McCauley. Prior to 1981, he was Deputy General Counsel of the National Oceanic and Atmospheric Administration. During 1982, he monitored the congressional reauthorization of the Act on behalf of a client. The author wishes to thank Ms. K. Shanahan for her assistance in the development of this paper.

[12 ELR 15032]

Should ocean dumping of all harmful municipal and industrial wastes be prohibited?

Should the oceans be more protected against waste disposal than alternative media?

A decade after the initial passage of Title I of the Marine Protection, Research, and Sanctuaries Act (the Ocean Dumping Act),¹ these fundamental questions of environmental philosophy and national policy remain unresolved. Recent developments in the administration of the Act as it applies to sewage sludge have highlighted these issues, but so far neither the Congress nor the Environmental Protection Agency (EPA) seems prepared to address them head-on. As a result, the current ambiguity of national policy is likely to persist for at least another year, leaving all of the affected parties at sea. A review of the recent judicial, legislative, and administrative developments is worthy of attention both because of their intrinsic importance and as a fascinating example of the legal process at work.

The Initial Context

The Act was adopted by the 92nd Congress at a peak of concern over environmental protection, as reflected at the United Nations Conference on the Human Environment, and more specifically over water pollution, as reflected in the passage of the Federal Water Pollution Control Act of 1972,² (the "Clean Water Act" (CWA)). The predominant legislative mood was expressed in § 101(a) of the CWA, which announced that

The objective of this Act is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this Act —

(1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985; ….³

The practical requirements of the CWA were of course less sweeping. It required all municipalities to upgrade their sewage treatment facilities within five years to at least "secondary treatment," subsequently defined as approximately 85% removal of pollutants. Thus, the stage was set for a substantial increase — over 50% — in the quantity of sludge generated by municipal waste treatment facilities at the same time that the Ocean Dumping Act was imposing strict controls on the marine disposal of that sludge. In the Boston-Washington corridor, sewage sludge dumping has grown from 4.8 million tons in 1973 to 5.9 million tons in 1979.⁴ Current sewage sludge dumping is estimated to be seven million tons, and the potential level by 1987 could be 17 million tons.⁵

The CWA also established programs for industrial water pollution control, both for direct discharge and for the pretreatment of industrial waste discharged into municipal municipal systems, to ensure that municipal sludge would contain less toxic material and be more benign environmentally.⁶ Ocean dumping of industrial waste declined by 50% between 1973 and 1979,⁷ although interest in ocean disposal of industrial waste appears to be increasing.⁸

The declaration of policy in the Ocean Dumping Act — signed into law on October 23, 1972, five days after the CWA — was more circumspect than the CWA:

… to regulate the dumping of all types of materials into ocean waters and to prevent or strictly limit the dumping into ocean waters of any material which would adversely affect human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities.⁹

This language suggests a congressional directive to eliminate only ocean dumping that would degrade the marine environment, forcing the development and use of other disposal alternatives when that might be necessary.

The operative language of the Act, moreover, appears to require consideration of both economic and environmental trade-offs by EPA, allowing some "harm" to the marine environment in appropriate circumstances. It prohibits dumping without a permit and authorizes EPA to grant permits

… where the Administrator determines such dumping will not unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities.¹⁰

EPA is specifically authorized to "establish and issue various categories of permits"¹¹ and "considering the criteria established pursuant to subsection (a) of this section [quoted below], designate recommended sites or times for dumping and … sites or times within which certain material may not be dumped."¹² The relationship of site selection to permit approval was not spelled out.

EPA was directed to take into consideration the following factors in establishing criteria for permits:

(A) The need for the proposed dumping.

[12 ELR 15033]

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

(D) The effect of such dumping on marine ecosystems, ….

(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 ….

(I) In designating recommended sites, the Administrator shall utilize wherever feasible locations beyond the edge of the Continental Shelf.¹³

The nature of the economic and environmental trade-offs remains unarticulated — should they be based on an evaluation of the actual or projected effects of the material at the particular location where it is to be dumped, or simply on some abstract "marine environment"? Does the Act require or allow disapproval unless environmental factors alone, completely disregarding economics, indicate that ocean dumping is preferable?

Environmentalists make several arguments for a specially protected status for the ocean environment. First, the liquid character of the ocean and its function as a source of food and oxygen for marine life make marine pollution particularly destructive as compared to proper land disposal. Second, the ocean, as a "public" resource, is not priced and allocated by market forces (like land) and therefore ocean dumping appears cheaper to the dumper than land disposal. Third, the oceans have no human residents to form a political constituency. Fourth, the underlying environmental objective, reflected in the entire collection of pollution control and hazardous waste disposal laws of the past decade, is to discourage the creation and encourage the reprocessing of harmful materials; allowing cheap ocean disposal undermines the pressures for those results.

To those faced with the practical problem of waste disposal, the issue looks quite different. The costs of land disposal are between 10 and 100 times higher than the costs of ocean disposal. The harm to the oceans away from the immediate site of the dumping is at worst minimal, according to the available scientific research, and in many areas is obviously less than the impact of land-based sources of marine pollution. Finally, the dangers of land disposal, with its potential for infiltration of harmful materials into groundwater, are substantial and potentially much more threatening to human health.

These conflicting philosophies and concerns, unreconciled in the Act, have shaped the controversy over its implementation in the last decade.

EPA Implementation

The first opportunity to mold the Act in accordance with one or the other of these perspectives rested with EPA as the agency primarily responsible for the Act's administration. Following the environmentalists' philosophy, EPA could have immediately denied permits for the dumping of harmful materials; or following the pragmatists' philosophy, it could have provided for a case-by-case analysis of the economic and environmental costs and benefits facing each applicant and granted permits where ocean dumping seemed the most reasonable alternative.

Administrative agencies face their own imperatives, however. An immediate ban would be politically controversial. So would any scheme that treated neighboring communities and industries significantly differently in terms of the resulting costs. Ease of administration and enforcement argues for a system that avoids elaborate economic and environmental analysis of each application. EPA organization inhibits the comparative evaluation of land and ocean alternatives because EPA is divided into air, water, and land disposal elements. Finally, conventional patterns of thought, both internal and external to the Agency, suggested modelling the Act's permit system after the air and water programs — allowing existing discharges to continue for an interim period while a compliance schedule is developed and implemented.

Accordingly, EPA adopted in 1973 and refined in 1976 a regulatory scheme to phase out virtually all ocean dumping of sludge or other wastes on the basis of their potential impact on the "marine environment." This impact is determined by the presence of certain specific contaminants in more than trace quantities and by evaluation of the toxicity of the material to marine organisms.¹⁴ These determinations are, for the most part, to be made without regard to the actual environmental characteristics of the location where the material is to be dumped. If the material "fails" this test, it can still be dumped, but only under an interim permit that includes an implementation plan for ending ocean disposal.¹⁵ No such disposal was to continue beyond December 31, 1981.

This approach eliminated comprehensive, contextual evaluation of the economic and environmental trade-offs of dumping at a particular site as compared to particular land disposal alternatives. If the material was not deemed suitable for ocean dumping, no consideration need be given to the location of the dumping, the cost of land-based alternatives, or the environmental threat posed by the alternatives. EPA thus avoided both the cost of case-by-case economic or environmental analysis and the political controversies likely to result from the imposition of different costs on communities producing similar wastes but facing different alternatives. In the process, of course, EPA abandoned any attempt to arrive at the environmentally or socially optimal solution to disposal in each case. EPA's "middle ground" thus leaned toward the environmentalists' view, but delayed the day of reckoning to the end of 1981, a point conveniently far into the future to allow waste generators to make other plans, thus postponing and minimizing the controversy. Whether this system of interim permits combined with abstract criteria for measuring harm was consistent with the statutory scheme and within the range of the Administrator's[12 ELR 15034] discretion did not become a point of contention until the deadline grew near.

Overall, the EPA strategy did produce substantial success in phasing out ocean dumping by industries and municipalities. By 1979, more than 280 entities had found acceptable land-based alternatives, and only 50 permits for municipal and industrial wastes were issued that year.¹⁶ Signs of trouble with New York City, the largest municipal dumper, and certain New Jersey municipalities were already appearing, however.¹⁷

Congressional Review of the Act's Implementation

Congress had the opportunity to clarify and reshape the philosophy of the Act in 1977 and again in 1980 when the Act came up for reauthorization. With a Democratic President and a Democratic Congress, the environmentalists were in an excellent position to reinforce their goals on ocean dumping. The actual performance of the 95th and 96th Congresses, however, indicates an increasingly pragmatic view of the problem.

Congress carefully reviewed EPA's implementation of the Act in 1977, paying particular attention to the question of sludge disposal. Several congressmen were concerned that EPA had not pressed New York City and surrounding communities vigorously enough to end sludge dumping. (Other congressmen and senators, of course, were quite satisfied with the pace of the progress.) The result of the congressional evaluation was the adoption of legislative language that was generally perceived as an adoption of EPA's phase-out policy.¹⁸ In 1977, Congress added the following provision to the Act:

(a) The Administrator of the Environmental Protection Agency (hereinafter referred to in this section as the "Administrator") shall end the dumping of sewage sludge into ocean waters, or into waters described in Section 1411(b) of this article, as soon as possible after November 4, 1977, but in no case may the Administrator issue any permit or any renewal thereof (under Title I of the Marine Protection, Research and Sanctuaries Act of 1972) which authorizes any such dumping after December 31, 1981.

(b) For the purpose of this section, the term "sewage sludge" means any solid, semi-solid, or liquid waste generated by a municipal waste water treatment plant the ocean dumping of which may unreasonably degrade or endanger human health, welfare, amenities, or the marine environment, ecological systems, or economic potentialities.¹⁹

While paragraph (a) sounds unequivocal, paragraph (b) contains a definition of sewage sludge that is limited by the words "unreasonably degrade or endanger." The congressional motivation appears to have been to legitimize the interim permit system (the validity of which was questioned in the committee report)²⁰ and to add the force of statute to EPA's December 31, 1981 deadline.²¹ On the question of what this definition of sewage sludge was intended to mean, the committee report said:

In determining whether such sewage sludge "may unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities" the Administrator of EPA shall apply the criteria which were established by such agency in the Federal Register on January 11, 1977. If the sewage sludge to be dumped does not satisfy such criteria, it shall be deemed by the Administrator to fall within the definition of "sewagesludge" as set forth in section 4 of this bill, and, thereby, such dumping shall be phased out as soon as possible but prior to December 31, 1981.²²

Apparently satisfied that it had settled the sludge dumping question, the committee declared:

Congress has been criticized for not stating specific goals and objectives in the Ocean Dumping Act of 1972. Some of the agencies have stated that the act was unclear in its intent to phase out the dumping of potentially harmful sewage sludge into ocean waters. By the adoption of this Act the congressional policy will be clearly set forth for all concerned.²³

The definition of sewage sludge in the amendment, however, borrows the language of the congressional policy set out in the 1972 Act, and lends itself to the same variety of interpretations, of which EPA's is one of the least satisfactory. Thus, by using this language, the committee's apparent attempt (as characterized by the staff in the committee report) to adopt EPA's regulatory approach was clouded by the same ambiguous words that Congress had inserted in the original Act.

Three years later, in 1980, the Congress again reviewed EPA's administration of the Act and again amended it.Its primary action this round was to adopt a restriction on industrial waste disposal that mimicked the sewage sludge restriction of 1977 but allowed very narrow exceptions for research and emergency situations.²⁴ A proposed amendment to the sewage sludge restriction to establish a more pragmatic balancing was defeated in the House Merchant Marine and Fisheries Committee by more than two to one. As described in the committee report, the rejected amendment would.

direct the Administrator of EPA to balance the impacts of ocean dumping of sewage sludge against those of land disposal and select the least harmful alternative, thus allowing an extension of the 1981 deadline to 1984 if ocean dumping were found to be least harmful …. The intent of this amendment was to require the Administrator to take a broader approach to waste management by requiring a simultaneous evaluation of the consequences of both land and ocean disposal options.²⁵

Meanwhile, however, Congress amended the CWA in 1977 to relax the treatment requirements applicable to municipal treatment works discharging directly into marine waters. It adopted a new § 301(h) of the CWA²⁶ which allowed less than secondary treatment for such discharges if the resulting discharge would not degrade water [12 ELR 15035] quality. By this enactment, Congress recognized that the ocean's vast size gives it an assimilative capacity significantly greater than the capacity of rivers and inland waterways. Once this principle was accepted, ocean dumping of sludge as a long-term solution gained new credibility. The validity of this view was reinforced by the results of monitoring and research by the National Oceanic and Atmospheric Administration's Office of Marine Pollution Assessment, which concluded that sludge accounts for only five to 15 percent of the total pollution load in the New York Bight, and by a January 1981 report of the National Advisory Committee on Oceans and Atmosphere, which argued for a comprehensive environmental analysis of alternative disposal strategies without any a priori disqualification of ocean disposal.

By December 1981, a new administration and Congress went so far as to amend § 301(h) of the CWA to allow municipalities with already existing secondary treatment facilities to provide less stringent levels of treatment for marine discharges solely to save operating and maintenance expenses.²⁷ The growing interest in a pragmatic approach that does not ignore economics was evident.

City of New York v. EPA

It was in this context that the judiciary entered the stage. As December 31, 1981 drew near, the controversy EPA had postponed for a decade came alive. While many communities, including some major cities like Philadelphia, had found alternative methods of sludge disposal, financially strapped New York City chose to challenge EPA's interpretation of the law in court. The resulting decision by U.S. District Judge Sofaer in City of New York v. EPA²⁸ marked a major turning point in the administration of the Act. The opinion was originally issued on April 14, 1981, and reissued in revised form on August 26, 1981. EPA, under new management, decided not to appeal, and the environmental community, having failed to intervene in the case, had no recourse.

The case turned on the city's argument that EPA is required by the Act to make a comprehensive judgment about the reasonableness of the city's ocean dumping in light of the alternatives available to it. EPA argued in response that it had broad discretion to adopt an appropriate regulatory approach under the Act and that the 1977 amendments were a congressional endorsement of the EPA approach. The district court ruled in favor of the city, finding that the term "unreasonably degrade" requires the broadest sort of evaluation of reasonableness that takes into account the full range of economic and environmental considerations on a multimedia basis. The court's opinion speaks well for itself:

The City contends that the adverse consequences and costs of the short-term land disposal scheme greatly exceed the effects of continued dumping in the heavily polluted Bight, and it has urged EPA to renew its interim permit. EPA, however, has refused to hear the City's contentions, ….

The language and history of the 1972 Act, however, demonstrate that EPA's interpretation of the statute is wrong. The Act as originally adopted required EPS to consider, in connection with each application for dumping, whether that particular dumping would unreasonably degrade the marine environment in light of a number of factors, including those pressed by the City. EPA could not lawfully adopt a policy of denying all permits without examining and weighing an applicant's evidence that ocean dumping is the most reasonable alternative.

The Agency's conclusive presumption that materials that fail to satisfy the environmental impact criteria will unreasonably degrade the environment is arbitrary and capricious, and not in accordance with the governing statute.²⁹

The court was also unpersuaded by EPA's argument that, whatever the merits of EPA's original interpretation of the 1972 Act, Congress adopted the EPA approach in 1977, as evidenced by the language in the committee report. It reasoned that it would be "far too sweeping" for Congress to "freeze, and place beyond administrative and judicial review, a set of regulations [the January 11, 1977 rules] containing many interim provisions, in an area of scientific flux."³⁰ The congressional purpose, according to the court, was

to halt EPA's practice of issuing permits for the dumping of unreasonably degrading materials on grounds of local economic hardship. Congress did not intend to chisel the environmental impact criteria of Subpart B into stone; in fact, the legislators did not even scrutinize those criteria. EPA seeks to draw too much comfort from a single paragraph of the House Report.³¹

The court relied instead on a brief exchange between Senators Moynihan and Muskie on the Senate floor, which supported the city's interpretation.³² It concluded that EPA's regulations were "deficient in several respects":

EPA has acted unreasonably (1) in establishing Subpart B's conclusive presumption of unacceptable harm; (2) in assuming that technologically practicable alternatives to the ocean dumping of sludge exist in all cases; and (3) in forcing the City of proceed with the interim steps of a land-based alternative without evaluating and finding acceptable the actual and potential environmental effects of land disposal.³³

Throughout the opinion the court makes clear that economic costs as well as relative environmental impacts must be considered. At one point it notes that when Congress has intended to exclude cost considerations and rely on environmental factors, it has done so explicitly. Looking directly at the costs facing New York City, the court expressed the following views:

Neither does the Act permit EPA completely to disregard the financial implications of cessation of sludge dumping …. Absent proof of intolerable damage, cost is necessarily a relevant element in determining whether [12 ELR 15036] the degradation anticipated from a proposed dumping will be unreasonable.

The City has stated without contravention that its short-term, interim solution will entail capital costs of at least $125 million and operating costs of $12 to $15 million per year — in contrast to ocean dumping, which imposes virtually no capital costs and annual operating costs of only $3 million. The present record therefore strongly suggests that EPA believes the ocean must be protected — even from low risks of degradation — at any cost, and even if significant resulting improvement at the dumpsite cannot reasonably be expected. Under the circumstances of this case, EPA's conclusions as to the need for dumping are arbitrary.³⁴

A similar interpretation of the Act was adopted by the D.C. Circuit in Natural Resources Defense Council, Inc. v. Environmental Protection Agency,³⁵ a 1981 decision that interpreted the meaning of § 301(h) of the CWA. This conclusion was not central to the decision, but it puts this crucial circuit, where challenges to new regulations are often heard, on record endorsing a view akin to Judge Sofaer's.

Whether the City of New York decision would have survived on appeal and whether it will be followed by other courts is nevertheless open to question. Judge Sofaer's opinion, while thorough and articulate, runs counter to the widespread understanding that under the 1977 amendments, ocean dumping of harmful sludge was to be terminated by December 31, 1981. Moreover, it ignores numerous Supreme Court decisions calling for deference to an agency's interpretation of an act that it administers.

To understand the murkiness of the current situation, one should note that the Sofaer decision did not order EPA to grant New York City a permit; rather, EPA was ordered to review New York's application in light of all of the statutory factors as interpreted by the court, to revise its regulations to comply with the court's decision, and to designate a dump site for New York's sludge (if the permit is granted). Meanwhile, the court authorized New York to continue dumping without a permit, and without regard to the expiration of the site designation at its dump site.³⁶ Every one of these decisions will be subject to controversy and legal challenge.

Congressional Reauthorization in 1982

With the Act up for reauthorization, once again it is Congress' turn to act. Congressional rules require that reauthorization legislation be reported out of the relevant committee by May 15, and this deadline was met in both the House and Senate. The Senate hastily adopted a pro forma one-year extension of funding without any substantive changes, with the expectation that the House would again take the lead in initiating revisions.

The real controversy was played out in the House Merchant Marine and Fisheries Committee. To several members of Congress who had promoted the 1977 amendments, the City of New York decision and EPA's failure to appeal effectively reversed the meaning of their action. To others, the decision was a welcome injection of practicality into a subject too long governed by ideology. Under the guidance of Representative Norman D'Amours, Chairman of the Oceanography Subcommittee, the subcommittee staff circulated in late February a discussion draft of a bill that would omit "the need for the proposed dumping" from the criteria and revise the remaining criteria in § 102(a). A refined version, H.R. 6113, was introduced by Representative D'Amours on April 20, but at the April 28 joint markup by the Subcommittees on Oceanography and on Fisheries, Wildlife Conservation and the Environment, Chairman D'Amours withdrew his proposed changes to § 102(a). A principal argument in support of congressional inaction was the uncertain impact of City of New York and the forthcoming EPA regulations. The House limited its reauthorization to one year in order to assure congressional reevaluation after the outcome of the City of New York case is clearer.

Representatives Hughes and Evans jointly introduced an amendment to ban all dumping in the New York Bight Apex, a change that would require New York City and its neighbors to dump much further out to sea. That amendment and an amendment to impose liability on dumpers for damages caused by sewage sludge were defeated. The full House Merchant Marine and Fisheries Committee marked up and reported out H.R. 6113 on May 5, 1982. While the bill makes a number of changes in the Act, their overall impact on municipal and industrial dumping would be marginal. The key elements would

(1) require that designation of dump sites be preceded by studies of suitability and followed by monitoring;

(2) authorize the imposition of special permit conditions to minimize the harm from dumping, including measures to develop alternatives for disposal, contaminant reduction, or recycling;

(3) prohibit radioactive waste disposal for two years, and allow it afterwards only upon completion of an impact assessment for each permit;

(4) clarify the applicability of the London Ocean Dumping Convention to all aspects of the administration of the Act; and

(5) reauthorize appropriations for fiscal year 1983. User fees to be paid by dumpers to cover various governmental costs of administration were discussed extensively but only a provision for "reasonable administrative costs … incurred … in processing the permit" survived in the bill.

These changes were thought sufficiently important that the House Committee on Public Works and Transportation sought and obtained referral of H.R. 6113 to consider how the site designation and London Ocean Dumping Convention amendments might affect port maintenance and development. The result of the markups in the Public Works Committee was further refinement of the language of the bill, without a significant change in direction.

H.R. 6113 was reported out by Public Works and Transportation on July 29, 1982. The press of other legislative matters (particularly tax and budget concerns), as well as the proximity of the elections, make it unlikely that additional amendments will be added in either the House or the Senate. Passage by the House in the last days of the current Congress is very likely; Senate action is complicated by disputes over committee jurisdiction.

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What Happens Next?

On the fundamental issues, the Congress is throwing the ball back to EPA and the courts. A number of administrative and judicial actions are pending or planned for the near future. Because they all address the same basic issues, they are necessarily interrelated, and the outcome of each one will influence the outcome of the others. The key proceedings will include

Revision of EPA Regulations

EPA is planning to revise its permit regulations to conform to the interpretation of the Act handed down by the district court in City of New York. Indications arethat EPA officials read the decision to allow them substantial discretion to prohibit ocean dumping unless improvements in the quality of the sludge are impossible and no land-based alternatives exist. Even then, the use of dump sites farther offshore may be required. Proposed rules are not expected until the fall, perhaps awaiting congressional action on H.R. 6113 and the November elections.

Whatever the direction of the EPA regulations, they are almost certain to be challenged by municipalities, environmental groups, or both. Municipalities will insist that the regulations should provide a neutral evaluation of ocean dumping and other alternatives and take into account economic cost as well as environmental impacts. Environmental groups, on the other hand, will try to obtain a court of appeals ruling contrary to the district court's ruling in City of New York.

Reconsideration of the New York City Permit Application

In response to the court decision, EPA will reevaluate the New York City permit application, either under its newly adopted regulations or, if those regulations are not completed, on the basis of the statutory language. Once again, whether the permit is granted or denied, the outcome is likely to result in further litigation. Environmental groups that did not participate in City of New York can be expected to participate in this proceeding and appeal any decision favoring New York City; the city is equally likely to appeal if its application is denied or accompanied by permit conditions it considers unacceptable.

Simultaneously, EPA needs to initiate a proceeding to designate a site for New York City's dumping, since the existing designation expired on December 31, 1981. The outcome of this proceeding will significantly affect the cost of dumping and accordingly the reasonableness of the alternatives facing dumpers.

Pending Litigation and Applications by Other Municipalities

Other communities on both coasts have brought cases similar to New York City's or filed new ocean dumping permit applications. The National Wildlife Federation sought to intervene as a party to defend its interpretation of the Act in one of these proceedings, representing both the Federation and Representatives Evans and Hughes, but its motion was denied in May 1982, on grounds of untimeliness.³⁷ The court virtually invited the Federation to initiate its own suit to test the law, and the Federation has filed a notice of violation letter stating its intention to file a citizen suit under § 105(g)(2) of the Act.Once again, the objective is to get a ruling that conflicts with City of New York, laying the basis for an appeal ultimately to the Supreme Court.

Congressional Reauthorization in 1983

It will most certainly be more than six months before the outcome of these various administrative and judicial proceedings is evident. EPA's regulations may well not be final and the various judicial proceedings will almost likely still be on appeal as late as May of 1983. As a result, Congress will still face a very unsettled situation when it begins to address reauthorization of the Act next January. Whether it decides at that point to deal with the issues squarely or postpone further any change in the Act will depend upon the direction that the various proceedings seem to be taking and upon the outcome of this fall's congressional elections. Since 1983 is not an election year, Congress should take the opportunity to initiate a serious evaluation of the Act without waiting for the nirvana of definitive administrative and judicial interpretation.

When Congress does turn to the merits, it will have to spell out carefully its objectives for ocean dumping. A decade of administrative and judicial interpretation of the Act has highlighted the practical questions, and Congress needs to provide practical answers. Specifically, amendments to the Act should

(1) eliminate the ambiguous criteria like "unreasonably degrades" and "the need for the dumping";

(2) decide whether the eligibility of sludge or other material for ocean dumping should be based solely on the properties of the material or on an evaluation of the impact of the material on the site where it is to be dumped;

(3) specify whether the high cost of land or other disposal alternatives can ever justify allowing ocean disposal of material that would otherwise not be eligible;

(4) specify whether even eligible materials can be barred from ocean disposal if the alternatives are not significantly more expensive or environmentally more harmful; and

(5) establish whatever transition provisions are appropriate, making the transition period short enough that it will not vitiate the need to make preparations for compliance with the long term requirements.

Congressional resolution of these issues is vital, since the administrative and judicial actions are tending in opposite directions and neither will be able to provde definitive answers in the near future. Uncertainty and vacillation in national policy will be costly in both economic and political terms for governmental agencies at all levels and for those who work with them. For those concerned about ocean dumping, 1983 will be the time for focusing congressional attention on the issues and educating members of the House and Senate about the implications of the choices they must make.

1. 33 U.S.C. § 1401 et seq., ELR STAT. & REG. 41821.

2. 33 U.S.C. § 1251 et seq., ELR STAT. & REG. 42101.

3. CWA, § 101(a), 33 U.S.C. § 1251(a), ELR STAT. & REG. 42105.

4. ENVIRONMENTAL PROTECTION AGENCY, 1979 ANNUAL REPORT TO CONGRESS ON ADMINISTRATION OF THE MARINE PROTECTION, RESEARCH, AND SANCTUARIES ACT OF 1972 AS AMENDED (May 1980) [hereinafter cited as EPA 1979 ANNUAL REPORT].

5. H.R. REP. NO. 562, Part I, 97th Cong., 2d Sess 11 (1982).

6. CWA, § 307, 33 U.S.C. § 1317, ELR STAT. & REG. 42129.

7. EPA 1979 ANNUAL REPORT, supra note 4.

8. H.R. REP. NO. 562, PART I, supra note 5, at 11.

9. Marine Protection, Research, and Sanctuaries Act § 1401(b), 33 U.S.C. § 1401(b), ELR STAT. & REG. 41821.

10. Ocean Dumping Act, § 102(a), 33 U.S.C. § 1412(a), ELR STAT. & REG. 41821.

11. Ocean Dumping Act, § 102(b), 33 U.S.C. § 1412(b), ELR STAT. & REG. 41822.

12. Ocean Dumping Act, § 102(c), 33 U.S.C. § 1412(c), ELR STAT. & REG. 41822.

13. Ocean Dumping Act, § 102(a), 33 U.S.C. § 1412(a), ELR STAT. & REG. 41821.

14. 40 C.F.R. §§ 227.4-227.7 (1981), ELR STAT. & REG. 46316:7.

15. 40 C.F.R. § 227.3 (1981), ELR STAT. & REG. 46316:6.

16. S. REP. NO. 163, 96th Cong., 2d Sess. 2 (1979).

17. Id.

18. For example, S. REP. NO. 163, supra note 16, written in 1979, makes the unqualified statement that

A 1977 amendment to the Act requires the termination of ocean dumping of municipal sewage sludge no later than December 31, 1981.

19. Ocean Dumping Amendments, Pub. L. No. 95-153, § 4 (1977).

20. H.R. REP. NO. 325, Part I, 95th Cong., 1st Sess. 3 (1977).

21. Id.

22. Id. at 3-4.

23. Id. at 4.

24. Ocean Dumping Act Amendments, Pub. L. No. 96-572 (1980), amending § 4 of Pub. L. No. 95-153 (1977).

25. H.R. REP. NO. 894, Part I, 96th Cong., 2d Sess. 3 (1980).

26. The Clean Water Act of 1977, Pib. L. No. 95-217, § 44(1977).

27. Municipal Wastewater Treatment Construction Grant Amendments of 1981, Pub. L. No. 97-117 (1981); H.R. REP. NO. 270, 97th Cong., 1st Sess. 16 (1981). The amendment did specify that "[n]o permit issued under this subsection shall authorize the discharge of sewage sludge into marine waters," reversing a contrary interpretation of § 301(h) by the U.S. Court of Appeals in Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 656 F.2d 768, 11 ELR 20487 (D.C. Cir. 1981).

28. 12 ELR 21003 (S.D.N.Y. 1981).

29. 12 ELR at 21003-04.

35. 656 F.2d 768, 11 ELR 20487 (D.C. Cir. 1981).

36. H.R. REP. NO. 562, Part 2, 97th Cong. 2d Sess. 8 (1982).

37. Linden-Rosell Sewerage Authority v. Environmental Protection Agency, Nos. 81-1015 et al. (D.N.J. May 14, 1982).