State of Md. v. Train, Civ. A. No. 75-1731.

• Decision Date: 10 May 1976
• Docket Number: Civ. A. No. 75-1731.
• Citation: 415 F. Supp. 116
• Parties: STATE OF MARYLAND, Plaintiff, Commonwealth of Virginia and State of Delaware, Intervenor-Plaintiffs, v. Russell E. TRAIN, Administrator, U. S. Environmental Protection Agency, and Daniel J. Snyder, III, Regional Administrator, U. S. Environmental Protection Agency, Region III, Defendants.
• Court: U.S. District Court — District of Maryland

415 F. Supp. 116

STATE OF MARYLAND, Plaintiff Commonwealth of Virginia and State of Delaware, Intervenor-Plaintiffs, v. Russell E. TRAIN, Administrator, U. S. Environmental Protection Agency, and Daniel J. Snyder, III, Regional Administrator, U. S. Environmental Protection Agency, Region III, Defendants.

Civ. A. No. 75-1731.

United States District Court, D. Maryland.

May 10, 1976.

COPYRIGHT MATERIAL OMITTED

Francis B. Burch, Atty. Gen., Warren K. Rich, Deputy Atty. Gen., Annapolis, Md., for plaintiff State of Md.

Andrew P. Miller, Atty. Gen., James E. Moore, Asst. Atty. Gen., Richmond, Va., for intervenor plaintiff Com. of Va.

Richard R. Wier, Jr., Atty. Gen., Thomas Fenton Smith, Englewood, Colo., June D. MacArtor, Deputy Atty. Gen., Dover, Del., for intervenor State of Del.

John W. Sheldon, Asst. U. S. Atty., Baltimore, Md., James A. Rogers, Asst. Gen. Counsel, EPA, Washington, D. C., Ann Joseph, EPA, Philadelphia, Pa., Gary B. Randall, Fred R. Disheroon, Dept. of Justice, Washington, D. C., for defendants.

MEMORANDUM

GESELL, District Judge.^*

By this action Maryland seeks to prevent Camden, New Jersey, from using an ocean-dumping site in the Atlantic Ocean approximately 50 miles southeast of the mouth of Delaware Bay. This so-called Cape May site is being used by Philadelphia as well as Camden for the dumping of sewage sludge pursuant to interim ocean dumping permits issued by the Environmental Protection Agency (EPA). Defendants answered the complaint and filed a motion to dismiss for failure to join indispensable parties. On March 18, 1976, this Court denied that motion. The matter is now before the Court on cross-motions for summary judgment. An extensive record reflecting the underlying administrative hearings and containing various affidavits and depositions has been reviewed. The motions were fully briefed and argued.¹

On October 23, 1972, Congress enacted the Marine Protection, Research and Sanctuaries Act of 1972, 33 U.S.C. §§ 1401 et seq. (Ocean Dumping Act), which forms the basis for federal regulation of dumping of all types of materials into ocean waters. The Act provides that the Administrator of EPA (Administrator) may issue dumping permits and, acting pursuant to Section 102 of the Ocean Dumping Act (33 U.S.C. § 1412), the Administrator published Interim Ocean Dumping Regulations on April 5, 1973 (38 Fed.Reg. 8726), 40 C.F.R. §§ 220 et seq. and Criteria on May 16, 1973 (38 Fed. Reg. 12872), 40 C.F.R. §§ 227 et seq. These regulations set forth the procedures with which an applicant for an ocean dumping permit must comply and established the criteria for the review and evaluation of permit applications by EPA and designation of ocean dumping sites to be utilized on an interim basis.

Resolution of these motions requires a detailed explanation of the administrative actions taken and procedures used. The Ocean Dumping Act became effective on April 23, 1973. Prior to this date both Philadelphia and Camden had each been dumping sewage sludge in substantial quantity for many years at the Cape Henlopen site in the Atlantic Ocean, 13.8 nautical miles due east of Delaware.

On April 23, 1973, after publication of notice and following a public hearing, EPA issued an interim ocean dumping permit to Philadelphia. This permit was valid until October 23, 1973, or until the ninetieth day after promulgation of Final Ocean Regulations, whichever date occurred first, and, among other things, required Philadelphia to move its dumping activities approximately 35 miles east from the Cape Henlopen site to the Cape May site.

On April 27, 1973, again after notice and public hearing, EPA also issued an interim ocean dumping permit to Camden for a ninety-day period, which was renewed on July 30, 1973. This renewed Camden permit, like the Philadelphia permit, was valid for a period of six months or 90 calendar days after the promulgation of Final Ocean Dumping Regulations, whichever date came first. As it had done with Philadelphia, EPA also required Camden to move its dumping activities to the Cape May site.

On October 15, 1973, EPA published Final Ocean Dumping Regulations and Criteria (38 Fed.Reg. 28610), 40 C.F.R. §§ 220 et seq., which provided that there would be no immediate changes in the list of approved dumpsites and that all permits granted under the interim regulations and which would otherwise expire would be extended to February 13, 1974. Because both Philadelphia's and Camden's permits were in this category, this grandfather provision of the Final Regulations operated to extend both permits until February 13, 1974.

After some administrative delays, EPA extended Camden's July 30, 1973, permit indefinitely. Thereafter, on May 20, 1974, and following notice and a public hearing convened June 20, 1974, EPA issued a new interim ocean dumping permit to Camden for the Cape May site on August 21, 1974, valid for one year.

In accordance with the Final Regulations, EPA also issued a second interim permit to Philadelphia for one year on February 13, 1974. In November, 1974, Philadelphia applied to renew its interim permit due to expire in February, 1975, and, by subsequent amendment to its application, requested permission to increase the volume of sludge to be dumped. After notice and public hearing held January 14, 1975, EPA on February 14, 1975, issued another interim ocean dumping permit to Philadelphia. This permit limited the amount of sludge which Philadelphia could dump to 150 million gallons and prescribed a plan to find alternatives to this method of sludge disposal that included research and implementation of various specified disposal methods. The permit also contained several special conditions, one of which required Philadelphia to reduce ocean dumping by fifty percent by the end of 1978 and totally cease ocean dumping by the end of 1980.

By letter of February 27, 1975 (incorrectly dated as March 27, 1975), immediately following the issuance of the interim permit, a representative of Philadelphia stated that, in order "to obviate the necessity of instituting formal litigation" in federal court, Philadelphia demanded an adjudicatory hearing before the Administrator of EPA to challenge, among other things, the condition in the permit requiring cessation of ocean dumping.

Although EPA's regulations pertaining to the issuance of ocean dumping permits provide no formal procedures for such an appeal, the Administrator granted Philadelphia's request. The Administrator appointed a hearing panel which subsequently held a seven-day hearing in Washington, D. C. between May 19 and May 28, 1975.

Plaintiff in the present action was involved in discussions which preceded Philadelphia's request for a hearing. Other parties that participated in the hearing, in addition to the State of Maryland, were National Wildlife Federation, Environmental Defense Fund, State of Virginia, Delaware Valley River Basin Commission, Town of Ocean City, Maryland, and Mr. Rignal Baldwin. All parties presented evidence. Representatives from the Department of Agriculture testified as expert witnesses on alternative uses of sewage sludge. In addition, witnesses from Woods Hole Oceanographic Institute; EPA's Rhode Island, Annapolis, and Oregon Laboratories; the Virginia Institute of Marine Science; the Food and Drug Administration; the State of Maryland; Metropolitan Sanitary District of Greater Chicago; Raytheon Corporation; and several universities testified over seven days, and numerous exhibits were received as well as lengthy briefs. The Philadelphia proceeding became a forum for review of the scientific evidence relating to the Cape May site as well as for general analyses of the many ways in which sewage sludge can be used or disposed of. The hearings examined the scientific difficulties encountered in monitoring deep marine ecological interactions and evaluating potential dangers to the waters of the northeast coast of the United States should dumping of sewage sludge continue unabated.

On September 19, 1975, the hearing panel filed a 65-page report and made extensive findings of fact and conclusions of law based upon the record. The report concluded that while Philadelphia's dumping had not been shown to have caused harm at the Cape May site, there was sufficient cause for concern to order a general phasing out of Philadelphia's ocean dumping. The report also concluded that there were alternative means of disposal available but further investigation was necessary to determine the most appropriate method. Pending this final resolution, the panel recommended that issuance of the Philadelphia permit, as conditioned, be affirmed (except for condition 3, relating to amounts, which was recommended for reconsideration).

On September 25, 1975, the Administrator adopted the panel's recommendations in an eight-page decision which stated:

It is obvious that even assuming no harm has occurred at this point in time, the City has not shown that its continued dumping will not contribute to a general deterioration of the ocean or that such deterioration will not eventually cause adverse effects. It is significant that the scientists testifying at the hearing, while acknowledging the limitations on the present levels of knowledge to identify harm, expressed grave concern over the continued accumulation of pollutants in any ocean area, and the waters off the highly populated East Coast in particular. As has been observed, the ocean is not an infinite sink.

I believe that such potential harm is what Congress meant to include when it extended the Act to consideration of endangerment of the ocean. Certainly, there are degrees of potential harm, some calling for immediate action and others allowing more gradual implementation of remedial action. The record here does not show a need for immediately terminating the discharge but is sufficient to confirm the appropriateness of the Regional Administrator's schedule as a reasonable time

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