April 23, 1974, marked the first anniversary of EPA's jurisdiction over United States industrial and municipal ocean dumping. In 1968 — according to Council on Environmental Quality estimates — some 10 million tons of industrial waste and sewage sludge were disposed of at sea. In 1973 — five years, a statute, and a treaty¹ later — that figure has climbed to 12 million tons. How did we get where we are? Where do we go from here?

The Marine Protection, Research, and Sanctuaries Act of 1972² was passed in an effort to "prevent or strictly limit" the ocean-dumping of harmful materials and to prevent "unreasonable degradation" of the marine environment. To that end it places a strict ban on the oceandumping of "high-level radioactive wastes" and "chemical and biological warfare agents." Other wastes (with the exception of dredged materials, which fall within the purview of the Army Corps of Engineers) may be oceandumped only in accordance with permits issued by EPA following an assessment of dumping need, effects on marine ecosystems and resource values, and the availability of alternative methods and locatlions of waste disposal or recycling. Surveillance of dumpers is assigned to the Coast Guard, while research responsibility and the establishment of "marine sanctuaries" are vested in the Commerce Department's National Oceanographic and Atmospheric Administration (NOAA).

Ocean dumping regulations and criteria, not finalized by EPA until October 15, 1973,³ nearly a year after the act's passage, set up a system of five types of permits, only two of which are specifically mentioned in the statute, to control the dumping of essentially four categories of wastes. At one extreme, a handful of substances — high-level radioactives, CBW agents — are regarded as so dangerous as to preclude their dumping under any circumstances. At the other are wastes so innocuous that they may be dumped freely in most locations: these include rubble, construction debris, rocks, and boulders. In between are two other groups of toxic materials, the regulation of which is both more troublesome and more controversial. The first, which includes compounds of mercury and cadmium, DDT, and PCBs, is denominated "other prohibited materials" (the so-called "black list"), and may be ocean-dumped only as "trace contaminants." The second group, denominated "materials requiring special care" (the "gray list") is typified by arsenic and lead compounds. These wastes are, as a rlule, not to be dumped at levels in excess of so-called "limiting permissible concentrations," computed on the basis of laboratory tests of biological toxicity (bioassays) and the amount of dilution occurring at the disposal site (the "mixing zone").

Although provision is made for the issuance of "general," "emergency," and "research" permits, the two major permit types — and the only kinds of permits issued to date — are the so-called "special" and "interim" permits. Special permits are available only when specific "black list" and "gray list" numerical limits have been met. Once awarded, they are valid for up to three years, and renewals are relatively easily obtained. Interim permits, by contrast, are valid for no more than a year at a time, but are available without regard necessarily being given to effluent or water quality standards. Renewal of interim permits requires somewhat more elaborate scrutiny by EPA, and — unlike special permit renewals — an opportunity for public hearing.

The program has not gone smoothly. In addition to that general malady of federal programs — a lack of adequate funding and manpower — ocean dumping has run head-on into a knowledge vacuum. After more than 20 years of virtually unrestricted dumping, the oceans have almost overnight come under a regime of virtually total regulation — at least in theory. Technology, however, has failed to keep pace. More expensive and difficult to study than the air or inland waterways, the oceans have been examined by scientists sufficiently to raise many questlions, but not enough to provide more than a few answers. For example, no reliable yardstick of harm to marine life is yet available by which to gauge the impact of an almost unending procession of ocean-bound, wasteladen barges. It is not surprising, therefore, that ocean dumping permits are being issued in an uneven fashion, as competing plants, even in adjacent states, are sometimes issued widely differing permits to ocean-dump very similar wastes.

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What is surprising, however, is that a program so in need of strengthening has received so little attention from the "conservation" community. While some groups have dutifully filed comments on EPA's regulations and presented statements at regional permit hearings, the often fragile scientific underpinnings and legal adequacy of the ocean dumping program as a whole have in the main gone unchallenged. One notable exception has been the National Wildlife Federation, the largest, if not always most vocal of the private conservation organizations. NWF has managed to persuade EPA's Region II office, which regulates 80 percent of the country's ocean dumping, virtually to suspend the issuance of special permits, coveted by dumpers because of their long duration and lack of restrictive conditions, in favor of the less permissive interim permits. The suspension will continue until a formal, scientifically defensible bioassay test — the Federation cited 49 expert consultants who unanimously characterized the present stopgap bioassay test as worthless — can be devised. More recently, the Federation took its case to EPA Administrator Train, citing 17 major problems in the present regulatory scheme and proposing specific solutions.⁴ EPA has promised a mid-May response to NWF's 45-page petition. A committee of the National Academy of Sciences' Ocean Affairs Board has also undertaken, at EPA's request, a review of the agency's program, and a subcommittee of the House Merchant Marine and Fisheries Committee has scheduled oversight hearings for May 22. A reassessment of the program clearly has begun.

Much remains to be done, however, and the assistance of conservationists and marine scieetists is urgently needed. Years of neglect have brought about the present widespread pollution of the seas; the seemingly infinite ocean has turned out to be vulnerable after all. The future promises much more marine pollution under the pressure of our constantly expanding populations and even fastergrowing industries. Moreover, because the regulation of ocean dumping lags behind efforts to control pollution in other media, the by-products of effluent and emission treatment procedures all too often become candidates for ocean disposal. This vicious circle will continue and worsen until adequate and eeconomically feasible technologies are devised to recover and reuse much of the material now discarded as waste.

In the meantime, reliable methods must be developed for assessing the effects of ocean dumping and determining how to establish proper tolerance levels for damage to the marine environment. EPA's responsibility to develop and apply these standards is both a challenge and an opportunity. It is strongly to be hoped that EPA will involve the public and outside experts as fully as possible in this highly complex and vitally important process.

The same considerations apply to the other federal agencies with ocean dumping responsibilities. The Corps of Engineers, with authority over the vast tonnages of dredge spoils — some 80 to 90 percent of all ocean dumping — which are ocean-dumped as part of both federal and private projects, has an especially difficult task. Not only must it, through its permits system, make the difficult judgments that regulation of private dumping requires, but it must also regulate its own extensive dredging operations.⁵ The fullest possible public participation would seem especially important in cases where the Corps finds itself the "regulatee" as well as the regulator. Programmatic environmental impact statements, supplemented as necessary in connection with major individual projects, might be particularly useful both in defining the Corps' approach and in involving the public.

NOAA, which just filed — three months overdue — its first annual ocean dumping report to Congress, needs to expand its research and monitoring efforts and coordinate them more fully with EPA. For example, it remains uncertain how NOAA's activities tie in to disposal site monitoring regulations soon to be issued by EPA. The extent to which NOAA regards as necessary further research into the development of marine bioassay and monitoring procedures is also unclear. Over 90 percent of available NOAA funds are now being expended in a study of the New York Bight, but other areas, on and off the Continental Shelf, also deserve attention. Although § 203 of the Marine Protection Act authorized research to determine the best means of ending or minimizing all ocean dumping by the spring of 1978, that research has not yet begun. In addition, protected "marine sanctuaries," as provided for by Title III of the act, have yet to be designated.

Finally, the Coast Guard's surveillance and enforcement efforts need to be strengthened with fuller EPA coordination, to prevent dumping that is conducted without a permit, at night, or short of assigned disposal sites.

These are some of the many problems facing the ocean dumping program as it begins its second year. They are worth solving quickly. While there always seems to be one more river to pollute, there is only one ocean.

1. Convention on the Prevention of Marine Pollution by the Dumping of Wastes and Other Matter, ELR 40329.

2. P.L. 92-532, 33 U.S.C. § 1401, ELR 41821.

3. Regulations on Transportation for Dumping, and Dumping of Material into Ocean Waters, ELR 46305, 40 CFR Parts 220-226, 38 Fed. Reg. 28610 (Oct. 15, 1973).

4. Copies of the National Wildlife Federation petition are available from the ELR Digest Facsimile Service (51 pp. $5.10).

5. Final Corps regulations governing private dredge disposal were published at 39 Fed. Reg. 12115 (Apr. 3, 1974); proposed regulations covering federal dredging projects appeared at 39 Fed. Reg. 6113 (Feb. 19, 1974).

4 ELR 50021 | Environmental Law Reporter | copyright © 1974 | All rights reserved