Test Case on Ocean Dumping: Must Philadelphia Move Toward On-Land Disposal of Sewage Sludge?

Man has been dumping his wastes into the oceans since time immemorial, but the quantity and toxicity of these discharges has increased steadily as our industrial society has become more complex. Though scientists have just begun to study the environmental impact of these personal and industrial wastes and though tracking the paths of discharged metals and bacteria through shifting ocean currents is a frustrating and difficult task, the results thus far obtained from such investigation are not encouraging. Common sense alone suggests that the ocean's ability to absorb poisonous wastes is not infinite.

In response to this problem, Congress passed the Marine Protection, Research, and Sanctuaries Act of 1972.¹ The Act declares that the policy of the United States shall be 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." Under the final regulations and criteria promulgated by the Environmntal Protection Agency in 1973² pursuant to the statute, the Administrator has the discretion to issue one year "interim permits" for dumping toxic wastes in the ocean, provided that the dumper either designs and implements land-based waste disposal projects that will phase out all ocean dumping, or ultimately reduces the toxic components of its wastes so as to qualify for a "special permit," which must prescribe stricter numerical standards for allowable discharges. After several years of lax performance, the EPA has recently taken a vigorous stand on such an implementation procedure in the case of "Philadelphia sludge." Because other major seacoast cities, including Boston and New York, would [5 ELR 10145] prefer to go to sea with sewage sludge, whatever the environmental costs, the Philadelphia story is an important test case.

In 1973 and 1974, Philadelphia routinely applied for and received interim permits from the EPA authorizing the city annually to dump 150 million gallons of industrial and human sewage sludge from two treatment plants into the Atlantic Ocean at a dumpsite 40 miles off the Maryland coast. Philadelphia applied for its third annual permit in early 1975, expecting to obtain it as a matter of course. On February 13, the Region III Administrator granted another interim permit, but this time it included language ordering Philadelphia to halve all ocean sludge dumping by 1979, and to terminate it by 1981.

The new requirement stunned Philadelphia officials, who were faced with the task of designing and implementing a system to replace dumping within six years. Philadelphia Water Commissioner Carmen F. Guarino angrily declared that compliance with the EPA order would be impossible. Predictably, the city filed to have the regional decision reviewed by Environmental Protection Agency Administrator Russell Train. An adjudicatory hearing held in May of this year produced seven volumes of testimony, and Train is expected to release his ruling in early fall.

The Marine Protection, Research and Sanctuaries Act of 1972 authorizes the Administrator to issue a permit only where he "determines that such dumping will not unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems or economic potentialities."³ In order to ensure that long range dumping will not unreasonably degrade the environment, the EPA regulations provide that the Administrator can grant only a one year non-renewable interim permit for ocean dumping of sewage sludge,⁴ with or without imposed conditions such as phase-outs,⁵ when "blacklisted" materials such as the heavy metals cadmium and mercury, and "graylisted" materials, such as other metals and biodegradable organic matter, are present in the sludge in high concentrations.⁶ In applications for all permit types, both Train and former Administrator Ruckelshaus have interpreted the Act as requiring the applicant to clearly prove that no unreasonable degradation will result from the proposed dumping.⁷

Because Philadelphia sewage plants treat a large amount of industrial waste, the resultant sludge is especially toxic. Not only does the sludge contain unacceptable quantities of lead, copper, iron, zinc, arsenic and bacteria, but it exceeds the maximum limit for cadmium by more than 175 times and the mercury level by more than six times.⁸ Respondents EPA Region III, the National Wildlife Federation, the Environmental Defense Fund and the State of Maryland claimed that continued ocean dumping by Philadelphia would degrade and endanger both human health and the marine environment. Though scientists find it hard to pinpoint the exact uptake of heavy metals and bacteria by the clams, quahogs, sea scallops and crabs that inhabit the general area of the dumpsite, all of these organisms are known to be contaminated and to present a health hazard to humans who eat them. Weather conditions have forced barge captains to discharge full loads of sewage before reaching the marked dumping area on at least two occasions; because the captains did not report the short dumps immediately, fishermen were not warned that these normally safe waters were polluted. Scientific cruises have not yet traced exactly where currents send the released sludge, or how the material breaks down in water, but cruise data has documented statistically significant buildups of metals characteristic of Philadelphia sludge at stations within and seaward of the boundaries of the Philadelphia dumpsite.

Because ocean dumping studies are new and their conclusions uncertain, the city of Philadelphia contended that "the facts now available present only the most tenuous and preliminary suggestion that the City's ocean dumping is having any affect on the marine environment."⁹ But despite this attempt to reverse the burden of proof established by the Marine Protection Act, the Regional Administrator found that the city did not clearly show that its prospective dumping would not degrade or endanger the environment, and ruled that he therefore had no choice but to deny an interim permit or grant one with limited scope.

When Train granted Philadelphia's request for an adjudicatory hearing, he warned city officials that they not only had to convince him that Philadelphia's dumping caused no unreasonable environmental damage, but also had to overcome the presumptive validity of the Region III Administrator's imposition of the land treatment requirement.¹⁰ Because the Marine Protection Act provides that the Administrator "may" grant a permit when proposed dumping would not degrade the environment,¹¹ [5 ELR 10146] he also has full discretion to deny a permit even when plaintiffs fulfill their burden of proof, and Philadelphia faced a difficult task in attempting to prove any abuse of such wide discretion.

In view of permit evaluation criteria, the Regional Administrator's action appears beyond challenge. Given that he has full discretion to grant or deny an interim permit whenever maximum "blacklist" and "graylist" levels are exceeded, or to impose conditions such as phase-outs on a granted permit, the Region III Administrator acted fully within the limits of his powers in setting a six year limit on Philadelphia dumping.

In addition to setting toxicity levels, the regulations outline several conditions that an applicant must fulfill before receiving an interim permit.¹² Each application is to include an environmental assessment of the potential environmental impact of the proposed dumping, as well as a thorough review of the actual need for dumping and a discussion of possible alternatives. An interim permit technically requires that a recipient develop and actively implement a plan either to eliminate ocean disposal entirely or to limit dumping to wastes that meet permissible toxicity levels. Though Philadelphia did not fulfill any of these requirements in its first permit application, the EPA was willing to issue a permit, perhaps because the Agency chose to be conservative in applying a totally new system of regulations to an age-old disposal method. However, the regulations also suggest that any successive interim permits be issued only "upon satisfactory completion of each phase of the development and implementation of the plan." Thus, it appears that Philadelphia was fortunate to receive second and third interim permits at all, since Water Commissioner Guarino failed to design an implementation plan, much less to advance one.

Faced with almost certain defeat on the issues of the environmental harm of the discharges and the legality of the order, Philadelphia turned predictably to economic and technical feasibility objections. Its main contention on appeal was that the six year phase-out scheme was too short to allow Philadelphia to do the research and monitoring necessary to determine the most environmentally beneficial land-based system. Even environmentalists expressed little sympathy with this position, for if Commissioner Guarino had followed the interim permit requirements in the regulations, he would have been prepared with some kind of feasible alternative by the time of the hearing. He created further doubt about his good faith when he hired a consulting firm in Chicago to study possible plans, well aware that the chosen firm specialized in sanitary engineering and had no experience with ocean dumping or land application problems. Meanwhile, the Commissioner failed to utilize the willing resources of Pennsylvania's own university scientists, or the expertise of the United States Department of Agriculture Biological Waste Management Laboratory at Beltsville, Maryland.

Even on the question of feasibility, Philadelphia's position proved weak in the hearings, as a number of promising and pre-tested alternatives for land based treatment were unveiled. First, witness after witness urged that sludge be applied to strip mined land for reclamation purposes, because of its outstanding soil building properties. Though the reclaimed land might not be safe to use for food crops, any vegetation cover over Pennsylvania's hundreds of thousands of acres of stripped land would be an aesthetic and environmental improvement. This alternative would actually help the state mining industry, for Pennsylvania's Surface Mining Conservation and Reclamation Act¹³ imposes reclamation requirements on strip miners. The same statute authorized creation of a fund which could be used to study and implement the sludge application plan.

A second promising proposal was the Barber-Colman PURETEC acidified wet air oxidation process, a high temperature and pressure process for destroying sludge organics and recovering sludge nutrients and heavy metals. Philadelphia has already begun testing this program on a small scale, with successful results. Not only would recycling of precious heavy metals be an environmental benefit, but the processing costs of ten dollars per dry ton of sludge would be much less than ocean dumping costs.

Philadelphia could also digest, compost or heat-dry sludge for use as fertilizer on ornamental gardens and highway median strips and municipal parks.Ironically, the city has actually bought this same material from other cities for its own use. Philadelphia would not have to do virgin research, for a USDA composting operation has been performed successfully at Beltsville, Maryland, where the high grade finished product remains much in demand. The Beltsville plant actually composted lagooned Philadelphia sewage bludge in May of 1974 without difficulty and that experience proved that a site of only 25 to 40 acres could handle Philadelphia's entire sludge output of 190 dry tons per day.

Testimony at the adjudicatory hearing uncovered several other land alternatives in addition to the ones mentioned above, from simple disposal plans to major recycling efforts. The overall benefits of a land-based project appeared impressive. The land environment surpasses the ocean environment in its ability to protect the biosphere from contaminants because soil [5 ELR 10147] organisms break down organic compounds and metals are bound to soil particles and retained by plants in their roots. Problems that arise are more easily contained and analyzed on land; for example, if future research found a sludge component to be carcinogenic, scientists would know where to go to recover the material. Though some metals such as cadmium do eventually rise up the stems to the leaves of plants, grazing animals do not incorporate the metals in muscle or milk, but only in waste products.

Despite all the apparent benefits, Philadelphia raised several objections to the feasibility of the land-based programs, arguing for example that development of any alternative sewage sludge project would be expensive. But, as respondents pointed out, the four million dollars necessary to buy the city a barge and tug, which it now leases, would also finance 133 $30,000 tank trucks with flotation tires to transport the sludge to land application sites. In response to Commissioner Guarino's constant objection that six years was not enough time to phase out all ocean dumping, the respondents contended that, first, many of the proposed alternatives had been adequately tested elsewhere, so Philadelphia could utilize available research; and second, Philadelphia could use double shifts if necessary on experimentation and construction projects in order to meet the deadlines. Finally, Philadelphia officials raised the spector of public outrage, citing the recent refusal of the rural town of Letterkenny, Pennsylvania, to accept a municipal sludge project. However, Philadelphia officials failed to add that no public education efforts had been undertaken before the finished proposal was presented to the town. Indeed, the Letterkenny illustration was a straw man, since the owners of the 10,000 acre Kings Ranch outside of Philadelphia were willing to accept half of Philadelphia's annual sludge immediately, in its liquid form, to fertilize pasture land.

As a last resort, Philadelphia contested the "arbitrariness" of the Regional Administrator's imposing a flat ban on ocean dumping at a set date, particularly in view of EPA's provision of financial and scientific assistance in New York City's flexible three-stage study of sludge disposal alternatives. But the position of the cities is different. New York City owns an entire fleet of ocean going barges, while Philadelphia leases a single barge.Moreover, not only does New York have more sewage to dispose of, it also has far fewer strip mines to reclaim and ranches to fertilize.

If the Philadelphia phase-out order is to be compared to any other EPA decision, it should be the Dupont case of October 3, 1974.¹⁴ In that situation, as in Philadelphia's, there were major uncertainties about the environmental effects of proposed dumping, though studies had identified the chemical nature of the waste to be dumped. In ruling on Dupont's permit request, Administrator Train summed up his view of the Administrator's role:

Under the Statute, it is the Administrator's responsibility to determine that dumping will not result in unreasonable environmental degradation. That determination cannot be made in good faith without reasonable confidence in the sufficiency and reliability of the available scientific data. I have no such confidence in the information presented in this case … [F]urther technical studies are necessary before a permit could be granted for ocean disposal of the Dupont wastes.¹⁵

This statement alone indicates what Train's decision should be in the Philadelphia case. Indeed, as the National Wildlife Federation pointed out in its brief, the Dupont waste was a better candidate for ocean dumping than Philadelphia's sewage sludge because, first, the Dupont dumping was to take place 200 rather than 40 miles from land, and second, bio-assay tests found the Dupont wastes to be of relatively low toxicity, while Philadelphia presented no such evidence.¹⁶

In summary, Philadelphia had no solid ground on which to base its objections to the Region III Administrator's phase-out of water disposal. This order was in no way arbitrary, but followed both the letter and spirit of the Marine Protection, Research, and Sanctuaries Act.The EPA regulations and criteria implementing statutes were not unreasonable in requiring an applicant for an interim permit to develop and implement a plan to replace ocean dumping with a land-based alternative. After all, by allowing municipalities to continue dumping extremely toxic wastes while developing land application procedures, the interim permit scheme was an administratively-developed compromise that leaned heavily toward the economic needs of cities.¹⁷

While the nation's long range goal should be to minimize the quantity of wastes and maximize our recycling skills, short term realities are such that we must dump wastes somewhere — and land-based disposal and treatment of sludge appear environmentally superior to ocean dumping. Philadelphia was an appropriate place for the EPA to begin to enforce specific phase-out plans for ocean dumping, a policy which should be extended to other coastal cities in the near future. On July 18th, while Train was still deliberating on Philadelphia's appeal, the Region III Administrator ordered a five year phase-out dumping plan for the city of Camden, which uses the same dump site as Philadelphia. The message is clear. Interim permits are no longer to be used to excuse pollution. Cities are to comply with the regulations of the Marine Protection Act by developing and implementing phase-out plans — or be denied permits altogether. One way or the other, the Environmental Protection Agency finally seems determined to clean up the oceans.

1. Marine Protection, Research and Sanctuaries Act, 33 U.S.C. § 1401 et seq., ELR 41821.

2. Ocean Dumping: Final Regulations and Criteria, ELR 46305, 40 C.F.R. Subchapter H, Parts 220-227, 38 Fed. Reg. 28610 (Oct. 15, 1973).

3. Supra n.1, at § 102(a).

4. Criteria, supra n.2, at § 227.

5. Id. at § 220.4(a).

6. It should be noted that there is some question as to whether EPA's administratively constructed interim permit program is valid under the Act in permitting such discharges at all. Philadelphia is thus objecting to action taken under an administrative scheme which constitutes an essentially liberal interpretation of the statute in its favor.

7. Hearings on Ocean Dumping of Waste Materials Before the Subcomm. on Fisheries and Wildlife Conservation and the Subcomm. on Oceanography of the House Comm. on Merchant Marine and Fisheries, 92d Cong., 1st Sess., Ser. 2, at 194, 450-1 (1971).

8. Brief for the National Wildlife Federation, In the Matter of City of Philadelphia Ocean Disposal Permit No. PA 010, at 27.

9. Brief for the City of Philadelphia, In re City of Philadelphia Interim Ocean Dumping Permit PA 010, at 2.

10. Latter obligation set forth in para. 9 of the Administrator's March 26, 1975 letter to the Philadelphia Water Commissioner, agreeing to Philadelphia's request for an adjudicatory hearing.

11. Supra n. 1, at § 102.

12. 52 P.S. § 1396.1 et seq.

13. Criteria, supra n. 2, at § 220(3)(d)(1)-(3). Environmentalists cheered the inclusion of interim permit conditions in ocean dumping regulations. In announcing publication of the final regulations, ELR commented:

… This regulatory system which the final rules and criteria clarify and validate has the potential for effectively controlling the ocean dumping problem. The provisions for interim permits introduce an additional area in which to measure EPA's performance in trying to realize that potential. 3 ELR 10172-3.

Whether such hope was justified depends a great deal on Train's decision in the Philadelphia case.

14. In Re Permit to Dump Materials into Ocean Waters, E.I. Dupont de Nemours and Co., Belle Works, Belle, W. Va., October 3, 1974.

15. NWF Brief, supra n. 8, at 7.

16. Id. at 6.

17. See n. 6, supra.