Ocean Dumping, the Revised EPA Criteria, and the National Soil Fertility Program

Centuries ago — before its health threat was appreciated — garbage was thrown out of house windows onto streets, which seemed convenient commons for disposal of private wastes. Public health measures long ago banned garbage in the streets, and now the last remaining convenient commons are the oceans, which have begun receiving increasingly voluminous and toxic human garbage. Council on Environmental Quality (CEQ) figures show that the nation's ocean dumping activities have expanded from almost 10 million tons in 1968 to over 14 million tons in 1974.¹ Most of this increase is attributable to sewage sludge and construction and demolition debris, primarily originating along the east coast. The CEQ figures, however, represent an almost insignificant portion of the overall dumping problem. In 1974, over 120 million tons of dredged spoil were dumped into the oceans, triple the level reported in 1968.²

Ocean dumping has increased in the face of domestic and international law. Congressional policy, as enunciated in the Marine Protection, Research and Sanctuaries Act of 1972 (Ocean Dumping Act), is 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."³ Also, the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters, which entered into force on August 30, 1975, and to which the United States is a party, imposes upon its signatories the duty to prohibit ocean dumping of all radioactive materials, oil, and highly toxic wastes, and to regulate strictly the dumping of heavy metals, pesticides, and other wastes.⁴ To meet this duty, Congress amended the Ocean Dumping Act in 1974⁵ to require the Environmental Protection Agency (EPA) to apply the criteria of the Convention and its Annexes where these criteria would be no less stringent than the restrictions established under the Act.

Recent administrative, judicial, and legislative actions promise movement at last to implement these laudatory pronouncements. After the environmentally satisfying decision in the Philadelphia dumping controversy,⁶ it appears that the issue is again heating up with the imminent issuance of EPA's revised final ocean dumping critera.⁷ Moreover, announcement of a National Soil Fertility Program suggests that the ultimate long-term solution to dumping — recycling waste metals and employing sewage sludge as fertilizer and strip mine reclamation fill — appears now to have attracted wide attention.

EPA's Revised Criteria

Following the passage of the Ocean Dumping Act, EPA promulgated final regulations and criteria for evaluating ocean dumping applications.⁸ These regulations, like the Act, separated the requirements for applications to dump non-dredged wastes (such as sewage sludge, industrial wastes, and construction debris) from those for applications to dump wastes from dredging activities supervised by the Army Corps of Engineers. Although the division in the Act mainly acknowledges the Corps' traditional jurisdiction over dredging activities,⁹ the regulations purported to apply different substantive standards to the two types of applications. For example, the Act requires the Corps to evaluate dredge spoil permits according to the statutory standard used by EPA in its evaluations, namely, whether the dumping will "unreasonably degrade or endanger" humans or the environment.¹⁰ The regulations, on the other hand, permit the dumping of dredged material unless it will have an "unacceptable adverse impact" on certain environmental constituents.¹¹

This lowering of the statutory standard and other alleged discrepancies between the criteria for dredged and non-dreged material and violations of the Act and the Convention are the basis for a challenge in National Wildlife Federation v. Train, which is pending before the District Court for the District of Columbia.¹² In response to this suit (and the National Wildlife Federation's efforts at the administrative level), EPA formulated new ocean dumping regulations which, as this issue went to press, were on the verge of publication in the Federal Register. Besides revising the procedural requirements for permit applications, the new regulations purport to restructure Parts 227 and 228, the substantive criteria for permits and ocean dumping sites. And while EPA doubtless intended the revised regulations to meet objections to deficiencies in the original final [6 ELR 10145] regulations, the revised version perpetuates prior problems and creates new problems as well.

The new regulations continue the substantive dichotomy between applications to dump dredged and non-dredged materials. For instance, EPA must deny applications for non-dredged dumping that would exceed quantative limits on specified "black list" substances (like DDT, PCB's, etc.).¹³ Dredged materials are, however, explicitly exempt from these limits.¹⁴ The regulations do prohibit their dumping when they contain "other than trace contaminants," but, as the National Wildlife Federation points out, the regulations nowhere define "trace contaminants."¹⁵ Furthermore, EPA has apparently transformed its statutory duty to select disposal sites, for dredged as well as non-dredged dumping,¹⁶ into mere approval of sites selected by the Corps for dredged material. In addition, the requirement that EPA publish an environmental impact statement on its site selection inexplicably does not apply to dredge spoil sites.¹⁷

One serious deficiency in the proposed criteria is their lack of emphasis on the cumulative impact of continued dumping. For instance, while the site selection criteria mention as factors the effect of past discharges and the progressive changes in the dump site caused by repeated dumping,¹⁸ these evaluations are limited to individual dump sites. Nowhere do the criteria compel examination of the cumulative effects of multiple dumping of multiple pollutants.

Another major oversight of the criteria arises from their use of water quality criteria in evaluating dumping applications. The Act specifies that permits cannot violate "applicable water quality criteria."¹⁹ However, water quality standards are applicable under the Federal Water Pollution Control Act (FWPCA) only to the territorial sea,²⁰ whereas the Ocean Dumping Act's coverage includes "ocean waters" extending seaward of the baseline for the territorial sea.²¹ Thus, the revised criteria's definition of the limits of permissible concentrations of pollutants in dredged materials in terms of water quality²² is an empty requirement, in view of the fact that most dumping takes place well beyond the territorial sea, outside the jurisdiction of the FWPCA. This reliance on water quality testing also ignores the long-term toxic effects of dumped pollutants on the ocean ecology.

One unequivocally bright spot in the criteria is their ban on dumping 14 listed "known or suspected carcinogens."²³ This list goes beyond the requirements of either the Act or the Convention. Still, as the National Wildlife Federation has noted, earlier redrafts of the revised criteria prohibited disposal of all "known or suspected carcinogens, mutagens, or teratogens."

Citizen Suits

EPA's revised criteria loom large in the operation of the Ocean Dumping Act, not only because they establish the regulatory program, but also because they indirectly draw the public into dumping decisions via citizen suits to enforce or challenge the criteria. The Ocean Dumping Act authorizes any person to sue any other for violation of "any prohibition, limitation, criterion, or permit" under the Act.²⁴ Despite this wide-ranging provision, only three suits invoking the Act have been decided since its passage. None of these resolved a substantive issue under the Act, and only one opinion even discussed citizen suits. Both the tempo and substance of citizen suits under the Act can, however, be expected to increase in the near future, following the example of the challenge in National Wildlife Federation v. Train to the dredged spoil criteria.

The initial suit under the Ocean Dumping Act was Save Our Sound Fisheries Association v. Callaway,²⁵ in which fishing businesses sought to enjoin the Army's dumping of dredged spoil off the coast of Newport, Rhode Island. In what has proved to be the most significant holding thus far under the Act, the court enjoined the dumping pending compliance by the Army with the Act's public notice and hearing procedures, citing the important disclosure function of these procedural requirements:

The statutory procedures for obtaining a permit (including notice and opportunity for public hearing) before potentially harmful substances are introduced into the water are designed to insure that such decisions are based on specific and informed findings regarding the effect of such dumping on the marine environment.²⁶

While the court went on to premise its jurisdiction on the Administrative Procedure Act, it emphasized in dicta that agency compliance with the procedural mandate of the Ocean Dumping Act was too important a matter to preclude judicial review under the citizen suit provision. The court then upheld the Act's requirement that EPA's permit review criteria under § 102(a) are applicable to Corps dredging activities,²⁷ even though its rather sweeping injunction was based primarily on the Act's notice and hearing requirements for ocean dumping permits. The court expressed no opinion of the standard of proof to be met by either an applicant or an agency in the issuance of a permit.

The Ocean Dumping Act figured almost inadvertently in the second decision discussing the Act. In Natural Resources Defense Council v. Callaway,²⁸ the [6 ELR 10146] Second Circuit held that the Navy's dumping in Long Island Sound of polluted dredged spoil obtained from the Thames River at New London, Connecticut, violated both NEPA and the FWPCA. Long Island Sound is classified as "inland waters," which are exempt from coverage under the Act.²⁹ EPA's ocean dumping criteria, while thus not nominally applicable to inland waters, had been relied on by the Corps in granting the Navy's permit. This fact, combined with the absence of guidelines covering disposal of dredged materials in inland waters, allowed the court to hoist the Corps with its own petard and require application of the criteria to the Corps permit. In remanding the case to the district court, the Second Circuit observed that the lower court could substantively assess whether the Corps had sustained its burden of showing the New London site to be the best of available alternative sites. This affirmation of the Act's standards is encouraging to those who would have the courts take a hard look at whether EPA and the Corps measure up to their stated duties under the Act.

Maryland v. Train,³⁰ the most recent decision construing the Marine Protection, Research and Sanctuaries Act, was filed as a substantive challenge³¹ to EPA's granting a permit to the city of Camden, New Jersey, to dump its sewage sludge at the Cape May site concurrently used by Philadelphia.³² Following denial of EPA's procedural defense of failure to join as allegedly indispensable parties, among others, New Jersey and Philadelphia,³³ the district court granted partial summary judgment of Maryland on the ground that EPA should have held a hearing to allow Maryland to submit evidence showing that Camden's dumping at the Cape May site violated the Act, instead of granting the permit solely on the hearing record compiled for Philadelphia's dumping application. The court narrowed this holding by ruling that Maryland was not entitled to an adversary proceeding complete with examination by Maryland of Camden's data and representations of the unavailability of alternatives to the dumping. Maryland v. Train reinforces the decision in Save Our Sound Fisheries that the Act's procedural requirements are to be strictly construed, but the former court nevertheless refused to enjoin Camden's permit since the ocean dumping was seen as a temporary measure to forestall Camden's threat to dump its sludge in the Delaware River.

National Soil Fertility Program

Even with assiduous oversight of the Ocean Dumping Act through citizen suits, the demise of ocean dumping will occur only through source reduction, either by eliminating waste or finding better uses for it. One step in this direction has been taken via the national soil fertility program, which is being billed by supporters as the package that will rid the cities of sewage sludge and simultaneously augment the declining fertility of the nation's soils. H.R. 12561, the vehicle for this program, would direct the Agriculture Department to

conduct a study of the practicability, desirability, and feasibility of collecting organic waste material, composting or similarly treating such materials, transporting such materials to farms and rural areas, and placing such materials into the soil to improve soil fertility….³⁴

In addition, Agriculture would include in the study cost-benefit studies of this soil enrichment program compared with the costs of a similar program using petrochemical fertilizers, taking into account the savings, if any, realized by curtailing current waste disposal practices.

The national soil fertility program looks very attractive now that artificial fertilizer costs have skyrocketed and the nation's food-producing areas face increasingly aggravated growing conditions. Although the program has gained the endorsement of several presidential candidates, a thorough legislative examination of is merits must wait out the election year. In addition, its supporters face inevitable political opposition from the vested interests behind petrochemical fertilizers.

Aside from these political realities, several practical difficulties must be overcome before the institution of any soil fertility program using sewage sludge. The major problem is obtaining clean sludge. Sewage normally contains traces of heavy metals from inadequately pretreated industrial wastes, which make it dangerous, particularly for agricultural uses, since these metals can be absorbed by plants destined for the marketplace. Other non-farm uses of sludge are currently available, however. Pending the results of other federal research into the biological accumulation of trace contaminants in sludge, EPA is funding a demonstration grant in Bangor, Maine, to test the application of sludge as mulch in city parks. Thus, even though the goal of enhancing agricultural soil fertility with sludge may have to be deferred, land application alternatives to ocean dumping are receiving proper government attention.

Another hurdle to be met by the soil fertility program is funding. Presumably this concern will be addressed by legislation implementing the Agriculture Department study mandated by H.R. 12561. In the meantime, however, municipalities have opposed land treatment of sludge because of high land acquisition costs. This objection may be groundless, in view of 75 percent federal construction grant funding under the FWPCA for land acquisition.³⁵ With this assistance, land application — whether to municipal parks, ravaged strip mine lands, or farmland — appears to be an economically feasible alternative to ocean dumping.

[6 ELR 10147]

Institutional Coordination

Unfortunately, although the impetus for enactment of the Ocean Dumping Act came from a single agency, the Council on Environmental Quality,³⁶ the result was an Act implemented through fragmented jurisdictions. EPA establishes dumping criteria, the Corps handles dredged material matters, the Commerce Department's National Oceanographic and Atmospheric Administration conducts research and monitoring, and the Coast Guard exercises surveillance over dumping vessels. In addition, municipalities bear the ultimate burden of reconciling their obligations to control water pollution under the FWPCA and to find feasible alternatives to ocean dumping. It would appear that the time has come for the Council on Environmental Quality, as the voice of a national environmental policy, to call for a coordinated program among these diverse jurisdictions aimed toward a speedy end to ocean dumping.

1. Council on Environmental Quality, Sixth Annual Report 80 (1975).

2. Environmental Protection Agency, Ocean Dumping in the United States — 1975, Third Annual Report to the Congress 47-48 (1975).

3. 33 U.S.C. § 1401(b), ELR 41821.

4. Convention on the Prevention of Marine Pollution By Dumping of Wastes and Other Matters, art. IV(1), Annexes I, II; ELR 40329. See generally Lettow, The Control of Marine Pollution in Federal Environmental Law 649-72 (Dolgin & Guilbert, eds. 1974).

5. P.L. 93-254, 88 Stat. 51.

6. See Comment, Test Case on Ocean Dumping: Must Philadelphia Move Toward On-Land Disposal of Sewage Sludge?, 5 ELR 10144 (Sept. 1975); Comment, Latentt Risks of Ocean Dumping: EPA Administrator Affirms Philadelphia's Phase-Out Order, 5 ELR 10213 (Dec. 1975).

7. Proposed 40 C.F.R. parts 220-28.

8. 40 C.F.R. Subch. H parts 220-27, ELR 46305; see 33 U.S.C. § 1418, ELR 41823.

9. Compare 33 U.S.C. § 1412(a), ELR 41821 with 33 U.S.C. § 1413(a), (b), ELR 41822.

10. 33 U.S.C. § 1413(b), ELR 41822.

11. 40 C.F.R. § 227.6(c), ELR 46315.

12. National Wildlife Federation v. Train, No. 75-1927 (D.D.C., filed Nov. 19, 1975), ELR 65291.

13. Proposed 40 C.F.R. § 227.6(b); see Convention, Annex I, ELR 40331.

14. Proposed 40 C.F.R. § 227.1(b).

15. National Wildlife Federation, Critique of Draft Revised Ocean Dumping Criteria 1, 4 (1976); see Proposed 40 C.F.R. § 227.6.

16. 33 U.S.C. §§ 1412(c), 1413(b), ELR 41821-22.

17. Compare Proposed 40 C.F.R. §§ 228.4(b), 228.6(b) with 228.4(e), 228.6(a).

18. Proposed 40 C.F.R. §§ 228.6(a)(7), -.10(b)(4), (5).

19. 33 U.S.C. § 1412(a), ELR 41821.

20. 33 U.S.C. §§ 1313, 1362(7), (8), ELR 41125.

21. 33 U.S.C. § 1402(b), ELR 41821.

22. Proposed 40 C.F.R. § 227.27(a)(3).

23. Proposed 40 C.F.R. § 227.6(a)(5).

24. 33 U.S.C. § 1415(g), ELR 41823.

25. 387 F. Supp. 292, 4 ELR 20437 (D.R.I. 1974).

26. 387 F. Supp. at 299-300, 4 ELR at 20439.

27. See note 10 supra.

28. __ F.2d __, 5 ELR 20640 (2d Cir. Sept. 9, 1975).

29. 33 U.S.C. § 1402(b), ELR 41821.

30. 6 ELR 20496 (D. Md. Mar. 10, 1976).

31. Maryland v. Train, No. 75-1731, Complaint (D. Md., filed Nov. 26, 1975), ELR 65291.

32. See Comments, supra note 6.

33. Maryland v. Train, No. 75-1731, Motion to Dismiss (D. Md., filed Feb. 4, 1976), ELR 65313. See Fed. R. Civ. P. 12(b).

34. H.R. 12561, 94th Cong., 2d Sess. (1976).

35. Legal Memorandum from Joan Odell, EPA Associate General Counsel to John T. Rhett, Eligibility of Land Acquisition Costs Under Grants for Construction of Treatment Works (June 25, 1975), cited in Statement of Kenneth S. Kamlet on Behalf of the National Wildlife Federation on Fourteen Permit Applications for the Ocean Dumping of Sewage Sludge in the New York Bight, Before the U.S. Environmental Protection Agency, Region II, New York City, May 11, 1976.

36. The publication by the Council on Environmental Quality, Ocean Dumping — A National Policy (1970), is generally credited with sparking the legislative debates that resulted in enactment of the Ocean Dumping Act.