Maryland v. Train

No. 76-1887 (4th Cir. May 6, 1977 +)

Reversing a lower court, 6 ELR 20496, the Fourth Circuit orders the Environmental Protection Agency (EPA) to include in a hearing on the renewal of Philadelphia's ocean dumping permit the question of whether the Cape May site should continue to be designated as a proper ocean dumping site. Following hearings on the permits of the cities of Philadelphia and Camden, New Jersey, EPA ordered Camden's permit to expire on November 10, 1976 and Philadelphia's to expire in 1980.Camden's permit site was changed from Cape Henlopen to a site 106 miles off the coast. This suit challenging the propriety of Camden's permit is not moot since Philadelphia is still dumping at the Cape May site. Therefore, this matter can be resolved by broadening the scope of the hearing on reissuance of Philadelphia's permit to include the propriety of Cape May as a dumping site for anyone for any purpose.

For moving papers in this case, see ELR 65446.

Counsel for Appellant
Francis B. Burch, Attorney General; Edward M. Norton, Jr., Ass't Attorney General, Warren K. Rich, Ass't Attorney General
Department of Natural Resources, Annapolis MD 21401
(301) 224-7305

Counsel for Appellees
Peter R. Taft, Ass't Attorney General; George R. Hyde
Department of Justice
Washington DC 20530
(202) 739-2731

Jervis S. Finney, U.S. Attorney; John W. Sheldon Ass't U.S. Attorney
111 W. Calvert St., Baltimore MD 21202
(301) 539-2940

James A. Rogers
Environmental Protection Agency
Washington DC 20460
(202) 755-0760

Ann Joseph
Environmental Protection Agency
Philadelphia PA
(215) 597-9800

Before Haynsworth & Russell, JJ.; Williams,^* D.J.

[7 ELR 20443]

Per curiam:

In 1972, the Congress of the United States enacted the Ocean Dumping Act, 33 U.S.C. § 1401 et seq. This Act authorized the Administrator of the Environmental Protection Agency (EPA) to regulate the dumping of any material into ocean waters. Pursuant to the Act, EPA issued interim regulations governing ocean dumping and interim criteria for the issuance of permits for such dumping.These interim criteria contained a list of approved interim dumping sites, chosen by EPA primarily on the basis of historical use rather than environmental factors. One of these interim sites was known as the "Cape May" site, and is located about 35 miles due east of the Delaware-Maryland border.Also included in this list were several sites that are located off the edge of the continental shelf, one of which is designated the Deep Water Dump Site 106, or the "106-Mile Site."

Prior to April 23, 1973, the Cities of Philadelphia and Camden had been disposing of sludge from their sewage treatment plants at a site 13 miles east of Cape Henlopen. On April 23, 1973, after publication of notice and a public hearing, EPA issued an interim dumping permit to Philadelphia, requiring that city to move its dumping activities to the Cape May site. On April 27, 1973, again after notice and a hearing, EPA also issued an interim permit to Camden, likewise requiring that city to dump at the Cape May site.

On October 15, 1973, EPA's final regulations were promulgated, extending approval of the "interim" sites and also extending [7 ELR 20444] "interim" permits, including the Camden and Philadelphia permits, until February 13, 1974. The Camden permit was later extended, after notice and public hearing, for a one-year period beginning August 21, 1974.

Philadelphia's permit was also extended for one year from February 13, 1974, but the city's next application (in November 1974) requested an increase in the amount of sludge to be dumped. After a public hearing, this new permit was issued on February 14, 1975. However, this permit imposed an upper limit of 150 million gallons of sludge and stipulated that Philadelphia had to cease ocean dumping by the end of 1980.

The City of Philadelphia requested a hearing to contest the termination provisions of their last permit and EPA held a seven-day hearing in May 1975. This proceeding was opened to many participants, including the State of Maryland, and generated a thorough study of ocean dumping and its potential dangers. Based upon this hearing and the panel report, the Administrator concluded that its original decision to terminate the dumping within a reasonable time was correct. On November 11, 1975, EPA issued new one-year permit to Camden, with the condition that Camden also cease dumping, but by the end of 1979, one year earlier than Philadelphia. No hearing was held by EPA on the issuance of this permit to Camden.

On November 26, 1975, this action was brought by Maryland to challenge the issuance of the Camden permit. The primary contention of the plaintiff was that EPA had failed to conform to the legislative mandates in the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. and the Ocean Dumping Act, 33 U.S.C. § 1401 et seq. when designating dumping sites and in issuing dumping permits. The district court agreed with Maryland that EPA should not have issued the Camden permit without a hearing and granted summary judgment on that issue to the plaintiff. State of Maryland v. Train, 415 F. Supp. 116 [6 ELR 20496] (D. Md. 1976). However, the court granted defendant's motion for summary judgment on all other issues.

Thereafter, in July 1976, EPA's Region III held a hearing on the Camden permit as ordered by the district court.In September, the hearing panel issued a decision which recommended to the Region III Administratorthat the Camden permit be allowed to expire on November 10, 1976 and that it not be reissued. When Region III failed to reissue a dumping permit the City of Camden submitted a new dumping permit application to Region II in September 1976. In spite of Region III's determination, Region II and Camden obtained a consent decree in the United States District Court of New Jersey which granted Camden an emergency dumping permit for the Cape May site. United States v. City of Camden, Civ. No. 76-0424 (Jan. 7, 1977). Finally, after intervention by Administrator Russell E. Train and the Justice Department, a new order was issued by the district court in New Jersey changing Camden's dump site to the 106-Mile Site off the continental shelf.

Therefore, when the case came before this court, the initial problem was whether the suit had been mooted by the expiration of the Camden permit. Counsel for the State of Maryland argued that the action was not moot, since Philadelphia was still dumping at the Cape May site and an order invalidating the designation of that Cape May site would force Philadelphia to dump elsewhere. However, it was stated to the court by counsel for the Administrator that the Philadelphia permit would expire on June 4, 1977. Any reissuance of that permit would have to be preceded by a public hearing tentatively scheduled for the latter part of April 1977.

In view of the fact that EPA will be holding a hearing in late April concerning the reissuance of the Philadelphia permit to dump at the Cape May site, it sems that this matter may be resolved if EPA would enlarge the scope of that hearing to include an inquiry into the designation of the Cape May site as a dumping site. EPA has continuously asserted that the criteria for establishing dump sites are substantially the same as the criteria for issuing dumping permits. Also, counsel for the Administrator stated to this court several times that no other dumping permits would ever be issued at the "Cape May" site after expiration of the Philadelphia permit in 1980. In light of these assertions, it appears that the hearing on the reissuance of the Phildelphia permit and the suggested broadened inquiry into the Cape May site designation itself would be compatible efforts.

Accordingly, the decision of the United State District Court of Maryland granting summary judgment for the Administrator on several issues is reversed, and the case remanded. The district court is directed to order EPA to include in its regular Philadelphia permit renewal hearing a full inquiry into whether or not Cape May should be designated as a dumping site by anyone for any purpose.

REVERSED IN PART AND REMANDED

+ This opinion is designated "unpublished" by the Fourth Circuit. Rule 18d of the Rules of the Fourth Circuit states that citation of unpublished opinions is "disfavored," but

[i]f counsel believes, nevertheless, that an unpublished disposition has precedential value in relation to a material issue in a case and that there is no published opinion that would serve as well, such disposition may be cited if counsel serves a copy thereof on all other parties in the case and on the court. Such service may be accomplished by including a copy of the disposition in an appendix to the brief.

Rule 18d(iii).

* United States District Judge, Western District of Virginia, sitting by designation.