City of New York v. Environmental Protection Agency

No. 80 Civ. 1677 (ADS) (S.D.N.Y. November 2, 1981)

The district court remands for revision the Environmental Protection Agency's (EPA's) ocean dumping permit regulations promulgated pursuant to the Marine Protection, Research, and Sanctuaries Act (MPRSA). In a prior ruling, 11 ELR 20763, the court held that ocean dumping of sewage sludge may continue beyond the December 31, 1981 deadline mandated by the MPRSA, unless EPA determines, on a case-by-case basis, that such dumping would unreasonably degrade the marine environment. The court rules that the revised regulations may not establish a conclusive presumption of unreasonable degradation of the environment based solely upon a finding that a permit applicant's sludge violates the current regulations' environmental impact criteria. Instead, permit applications must be evaluated in light of all relevant criteria set forth in § 102(c) of the MPRSA. In addition, the court rules that, prior to promulgation of the revised regulations, EPA's evaluation of permit applications, including plaintiff's pending application for a special ocean dumping permit, may be based upon the current regulations to the extent they are consistent with the instant opinion. The court enjoins EPA from taking any enforcement action against plaintiff relating to ocean dumping of sewage sludge until EPA issues a final decision on plaintiff's petition to designate the New York Bight for such disposal. If EPA denies the petition, plaintiff must relocate its dumping operations from the Bight to other EPA-designated locations, but will retain its right to judicial review of the permit denial.

Counsel for Plaintiff
Allen G. Schwartz, Corp. Counsel; Thomas W. Bergdall, Stephen R. Kramer, Ass't Corp. Counsel
Municipal Bldg., New York NY 10007
(212) 566-3929

Counsel for Defendants
John S. Martin Jr., U.S. Attorney; Peter R. Paden, Ass't U.S. Attorney
One St. Andrew's Plaza, New York NY 10007
(212) 791-0055

Bruce C. Rashkow, Rebecca A. Donellan; James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2750

diane L. Olsson
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

[12 ELR 20183]

SOFAER, J.:

Final Judgment

WHEREAS this Court on April 14, 1981, filed an Opinion granting plaintiff New York City's motion for summary judgment [11 ELR 20763], the motion having been brought pursuant to Rule 56 of the Federal Rules of Civil Procedure; and

WHEREAS the Court issued its Amended Revised Opinion on September 2, 1981; and

WHEREAS the Court instructed New York City to file a proposed judgment implementing the Opinion and defendants, the United States Environmental Protection Agency et al. ("EPA"), to respond to this proposed judgment; and

WHEREAS the Court directed in its opinion that final judgment in this matter must specify that the 1981 deadline for ocean dumping set forth in § 102 of the Marine Protection, Research, and Sanctuaries Act of 1972, as amended, 33 U.S.C. § 1412a ("MPRSA") shall remain in effect, but only for that ocean dumping which may "unreasonably degrade" the ocean environment at a particular ocean dump site in view of all relevant statutory criteria; and

[12 ELR 20184]

WHEREAS the parties have informed the Court that New York City has initiated an application with the EPA for a Special permit under Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. § 1401 et seq. (hereinafter "the MPRSA") authorizing the ocean disposal of the City's sewage sludge beyond December 31, 1981; and

WHEREAS the parties have further informed the Court that New York has filed a petition with EPA seeking, inter alia, that EPA designate, pursuant to 40 C.F.R. Part 228, the site at 40 degrees 22' 30" N to 40 degrees 25' 00" N 73 degrees 41' 30" W to 73 degrees 45' 00" W (the "12 mile site") as available, after December 31, 1981, for the ocean disposal of sewage sludge which does not unreasonably degrade the environment (hereinafter "New York City's petition"); and

WHEREAS the parties have further informed the Court that EPA intends to consider, in deciding New York City's petition, the factors set forth in § 102(c) of the MPRSA, 33 U.S.C. § 1412, and 40 C.F.R. Part 228; and

WHEREAS the parties have further informed the Court that EPA intends to publish a request for comment in the Federal Register on the issues raised by New York City's petition and provide for a comment period of at least 60 days duration; and

WHEREAS the parties have further informed the Court that EPA intends to solicit at the same time comment on its proposed action with respect to the designation of the deepwater site at 38 degrees 40' 00" N to 39 degrees 00' 00" N to 72 degrees 00' 00" W to 72 degrees 30' 00" W (the "106 mile site") for the ocean disposal of materials, including sewage sludge; and

WHEREAS the parties have further informed the Court that EPA intends to issue a final decision on New York City's application for an ocean dumping permit following EPA's issuance of a final determination on New York City's petition; and

WHEREAS the City, upon expiration of its Interim ocean dumping permit, may not have the authority, in the absence of a court order or final permit issued by EPA, to continue ocean dumping of sewage sludge while EPA considers both New York City's petition and the City's application for an ocean dumping permit;

Now, therefore, on motion of the City of New York and in the absence of opposition by EPA, it is hereby

ORDERED, ADJUDGED AND DECREED as follows:

1. EPA's regulations governing the issuance of ocean dumping permits (40 C.F.R. Part 227) are remanded for revision by the Agency in accordance with applicable law. The revised regulations may not establish a conclusive presumption of unreasonable degradation of the environment based solely upon a finding that a permit applicant's sludge violates the environmental impact criteria set forth at Subpart B of 40 C.F.R. Part 227 and shall require permit applications to be evaluated in light of all relevant criteria set forth in § 102(a) of the MPRSA, 33 U.S.C. § 1412a. Provided that nothing in this order restricts the right of EPA to revise, in whole or in part, its regulations relating to the issuance of ocean dumping permits in any manner consistent with applicable law, nor does anything in this order require EPA to designate a site for ocean dumping of sewage sludge in violation of its criteria for site designation contained in 40 C.F.R. Part 228 and § 102(c) of MPRSA.

2. Prior to revision of the regulations, EPA shall review permit applications in a manner consistent with applicable law and may use its current regulations in evaluating permit applications except insofar as they establish a conclusive presumption of unreasonable degradation to the environment based solely upon a finding that a permit applicant's sludge violates the environmental impact criteria set forth at Subpart B of 40 C.F.R. Part 227.

3. EPA will evaluate New York City's pending application for a Special ocean dumping permit in accordance with the terms of paragraph 2 and may request any additional information with regard to such application which the Agency determines is reasonably required to determine whether such permit may be issued. In addition, New York will prepare an application for a Special permit at the 106 mile site if directed by the Agency and shall supply such information as may be reasonably required to evaluate preliminarily and the Agency's rule-making with respect to the 106 mile site.

4. For the period from the date of entry of this judgment until EPA publishes its final action on New York City's petition, EPA is enjoined from taking any enforcement action against New York City with respect to the City's ocean dumping of sewage sludge so long as such dumping is accomplished in accordance with the conditions of the City's last ocean dumping permit (No. II-NY-009), issued January 6, 1981, other than that part of Special Condition 7 of the permit that requires New York City to construct onshore facilities for the disposal of sewage sludge.

5. If EPA by its final rule declines to designate the 12-mile site for further ocean disposal of sewage sludge, New York City shall reatain its full right and discretion, unaffected by any of the terms of this judgment, to seek judicial review of such decision in a manner consistent with applicable law. This Court shall retain jurisdiction over this matter for the purpose of hearing and determining any such supplemental complaint by the City against EPA, including any request for preliminary and/or final injunctive relief which the City may demand.

6. If EPA by its final rule declines to designate the 12 mile site for further ocean disposal of sewage sludge, New York City, in the absence of a judicial stay, will take all steps necessary for a rapid and orderly removal of dumping from the 12 mile site to such other locations as are then designated by EPA (see 40 C.F.R. Part 228). If, within 2 weeks of any such decision by EPA not to designate the 12 mile site, the parties have been unable to agree on a schedule for the rapid and orderly removal of New York City dumping operations sludge disposal, the issue of an appropriate schedule may be submitted by either party to the Court, or a special master if one is appointed. In devising such a schedule, the economic and technical feasibility of reasonably expeditious relocation of the City's dumping operation to such sites as may be designated by EPA in accordance with the statutory criteria set forth in § 102(a) of MPRSA shall be considered.

7. If, pursuant to paragraph 6, New York City removes its sludge dumping operation from the 12 mile site to such other site or sites as are designated by EPA, EPA is enjoined from taking enforcement action against the City for the City's ocean dumping so long as the dumping is accomplished in accordance with the conditions of permit No. II-NY-009 referenced in paragraph 4, as modified by EPA by letter to the Court and the City to reflect any reasonable changes due to the change in dump site. The preceding sentence, if it becomes applicable, shall remain in effect until EPA's final action on New York City's permit application.

8. If EPA by final rule grants New York City's petition, New York City shall be permitted to dispose of its sludge at the 12 mile site, consistent with the terms of the designation and in accordance with the conditions of permit No. II-NY-009 referenced in paragraph 4, during the period that EPA is considering New York City's pending ocean dumping permit application. In the event the EPA's designation of the 12 mile site limits the site's availability for all or part of New York City's sludge, the provisions of paragraphs 6 and 7 shall apply to so much of New York City's sludge as could no longer be dumped at the 12 mile site.