City of New York v. United States EPA

• Citation: 543 F. Supp. 1084
• Decision Date: 26 August 1981
• Docket Number: No. 80 Civ. 1677 (ADS).,80 Civ. 1677 (ADS).
• Parties: The CITY OF NEW YORK, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Douglas M. Costle as Administrator, United States Environmental Protection Agency, and Charles Warren as Regional Administrator, United States Environmental Protection Agency, Region II, Defendants.
• Court: U.S. District Court — Southern District of New York

543 F. Supp. 1084

The CITY OF NEW YORK, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Douglas M. Costle as Administrator, United States Environmental Protection Agency, and Charles Warren as Regional Administrator, United States Environmental Protection Agency, Region II, Defendants.

No. 80 Civ. 1677 (ADS).

United States District Court, S. D. New York.

August 26, 1981.

Allen G. Schwartz, Corp. Counsel of the City of New York; Thomas W. Bergdall, Stephen P. Kramer, Asst. Corporation Counsels, New York City, for plaintiff.

John S. Martin, Jr., U. S. Atty., S. D. N. Y., Peter R. Paden, Gaines Gwathmey, III, Asst. U. S. Attys., New York City, James W. Moorman, Asst. Atty. Gen., Land and Natural Resources Division; Bruce C. Rashkow, Rebecca A. Donnellan, Attys. U. S. Dept. of Justice, Washington, D. C., Diane L. Olsson, E. P. A., Washington, D. C., for defendants.

REVISED OPINION^*

SOFAER, District Judge.

The City of New York dumps approximately 260 dry tons of sewage sludge each day into an area of the ocean known as the New York Bight Apex. The material dumped is the product of primary and secondary treatment of the City's sewage at various municipal sewage treatment facilities. The dumping is authorized by an interim permit issued by the Environmental Protection Administration ("EPA"). That permit requires the City to devise and implement an alternative method of disposal by December 31, 1981.

At EPA's behest, the City has developed a two-stage plan for alternative disposal of sewage sludge. As a short-term alternative to ocean dumping, the City proposes to compost the sludge (together with bulking material) and to spread the materials as ground cover and fill on various landsites throughout the City.¹ The supply of such land is limited, however, and the City will therefore need to implement a long-term alternative by 1988 or 1989. No long-term alternative has yet been devised, although the City's consultants are now preparing recommendations.

The City contends that the adverse consequences and costs of the short-term land disposal scheme greatly exceed the effects of continued dumping in the heavily polluted Bight, and it has urged EPA to renew its interim permit. EPA, however, has refused to hear the City's contentions, and the City has brought this lawsuit to compel EPA to consider its evidence. The agency contends that, in a 1977 amendment of the Marine Protection, Research and Sanctuaries Act of 1972, 33 U.S.C. §§ 1401-1444 (the "Act"), Congress absolutely barred all ocean dumping after December 31, 1981 of sewage sludge found harmful to the marine environment. The City, on the other hand, argues that Congress has barred only that dumping which "unreasonably" degrades the marine environment, and that in determining whether particular dumping is unreasonable, EPA must evaluate the cost and potential hazards of land-based alternatives and the effects of the proposed dumping upon the particular dump site. The City has adduced considerable evidence that its dumping in the Bight has relatively inconsequential effects; that cessation of the dumping would result in no discernible improvement in the Bight in the foreseeable future; that the interim land disposal plan would be extremely costly (over $200 million) and could only be used for about eight years; and that the interim land-based plan poses its own environmental and health hazards, which might later prove to be far more deleterious than the known and potential hazards of the ocean dumping.

EPA concedes that, under the 1972 Act, it was required to consider the relative consequences of ocean and land-based disposal in formulating the criteria by which permits would be issued; but it contends that it was not required to consider those factors in evaluating individual permit applications. The Agency claims that, prior to 1977, it was free to adopt criteria pursuant to which a permit application was automatically denied—irrespective of all other considerations—if the particular sludge failed certain bioassay tests. Since 1977, EPA argues, it is required to apply the statute in this manner, because in adopting the 1977 amendment, Congress embodied EPA's approach in a statutory command.

The language and history of the 1972 Act, however, demonstrate that EPA's interpretation of the statute is wrong. The Act as originally adopted required EPA to consider, in connection with each application for dumping, whether that particular dumping would unreasonably degrade the marine environment in light of a number of factors, including those pressed by the City. EPA could not lawfully adopt a policy of denying all permits without examining and weighing an applicant's evidence that ocean dumping is the most reasonable alternative. The 1977 amendment to the Act provides little support for EPA's present position; it prohibits only unreasonable dumping, without providing any substitute for the definition of "unreasonable" provided in the original statute. Although Congress might be empowered to order an end to all ocean dumping, in this case the amendment is properly construed to prevent the issuance of permits only for dumping that EPA in fact finds is unreasonable. The Agency's conclusive presumption that materials that fail to satisfy the environmental impact criteria will unreasonably degrade the environment is arbitrary and capricious, and not in accordance with the governing statute.

I. JURISDICTION TO CHALLENGE EPA'S POLICY

A challenge to an agency's refusal to act, standing alone, could pose serious jurisdictional problems. In this case, however, EPA has made clear in its regulations and dealings with the City that it will not grant any type of permit for sludge dumping after December 31, 1981. In October 1979, the City asked EPA for an interim permit with a target date of sometime in the late 1980's for implementing a land-based alternative. Although the City was confident that it could meet the 1981 deadline, it feared the environmental consequences of the alternative disposal plan. It contended, moreover, that the 1981 deadline should not be applied to the City's sludge, because the volume being dumped did not unreasonably degrade the New York Bight. See Affidavit of J. Kevin Healy (General Counsel, New York City Department of Environmental Protection), Exhibit D, at 3-5. On November 1, 1979, the Hearing Officer recommended issuance of an interim permit until December 31, 1981 and suggested that, because the dumping appeared not to degrade the ocean environment unreasonably, a further extension should be granted if necessary. Id., Exhibit E. The EPA Staff objected to the Hearing Officer's recommendation, contending that the Act barred all dumping that failed to comply with the criteria. Id., Exhibit F. On March 13, 1980, without commenting on the City's request for an extension, the Regional Administrator issued an interim permit with a December 31, 1981 deadline.

The City again requested an extension of the 1981 deadline on March 24, 1980, in an application for certain technical modifications, and on June 27, 1980 the City petitioned the Administrator to commence proceedings to amend the ocean dumping criteria so that the City could dump beyond the deadline. No action has been taken on the application, and EPA has sought no delay in this litigation to enable it to pass upon the City's petition. At the same time that it brought this suit, the City filed a new application for permission to dump after 1981. EPA has not sought to defer a judicial ruling on the Agency's interpretation, indicating its resolve prior to January 1981 to deny the City's application. See id. ¶ 6 ("EPA officials have been unanimous in their view that the EPA cannot legally issue an `interim' ocean dumping permit" for dumping after 1981). Accordingly, the doctrines of primary jurisdiction and exhaustion of administrative remedies do not bar this lawsuit. See Diapulse Corp. v. FDA, 500 F.2d 75, 77 (2d Cir. 1974); Wolff v. Selective Service Local Board No. 16, 372 F.2d 817, 825 (2d Cir. 1967); Mobil Oil Corp. v. Department of Energy, 469 F.Supp. 1119, 1123-24 (S.D.N.Y.1979). Here, as in Connecticut v. EPA, 656 F.2d 902 at 905-06 (2d Cir. 1981), "to defer the exercise of our jurisdiction until such time as EPA renders its final decision on those petitions would thus effectively moot this entire dispute."

The only jurisdictional argument made by EPA is its rather casually advanced suggestion that the City should be estopped from challenging the regulations. The City, EPA contends, has had notice of the 1981 deadline since 1977 and has accepted EPA funds to achieve compliance. Furthermore, the City has filed the necessary plans and has indicated that it is ready to comply with the first stage of its planned alternative. This suit, the Agency claims, is a last-minute attempt to delay or thwart a long-term commitment. Defendant's Memorandum at 27 n. *.

No basis exists in this case for an estoppel. The City has made no misrepresentations. It has always opposed EPA's interpretation of the 1972 Act. The City did not attack the Agency's regulations prior to this lawsuit because, despite EPA's refusal to issue the City a special permit, the City annually received interim permits. Moreover, as counsel for the City explained at oral argument, the City did not file suit earlier because it genuinely expected to be able to develop acceptable alternatives before the 1981 deadline; the dangers of the composting scheme were not immediately evident and necessitated additional studies. The full cost of the City's first phase only recently became known with accuracy. Data concerning the relative safety with which the City could continue dumping in the near future have become available only within the last few years, and the City contends that the most recent evidence indicates that its dumping has a minimal adverse effect at the approved disposal site. Only recently has it become...