Ocean Dumping Regulation: An Overview

Transcription

1 Ecology Law Quarterly Volume 5 Issue 4 Article 4 June 1976 Ocean Dumping Regulation: An Overview Joseph A. Lumsdaine Follow this and additional works at: Recommended Citation Joseph A. Lumsdaine, Ocean Dumping Regulation: An Overview, 5 Ecology L. Q. 753 (1976). Available at: Link to publisher version (DOI) This Article is brought to you for free and open access by the Law Journals and Related Materials at Berkeley Law Scholarship Repository. It has been accepted for inclusion in Ecology Law Quarterly by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact jcera@law.berkeley.edu.

2 Ocean Dumping Regulation: An Overview Joseph A. Lumsdaine* The oceans are the earth's greatest single natural resource. Covering 70 percent of its surface, they are crucial to balancing the global ecosystem.' Oceans and atmosphere are integrated systems that influence climatic changes. 2 Ocean waters support many forms of marine life, some of which are important sources of food for humans. 3 The beauty of the oceans provides aesthetic pleasure to coastal inhabitants and visitors alike, indirectly supporting many businesses concerned with tourism. 4 People have used the ocean as a waste receptacle for centuries. For years dumping had little effect; however, with the accelerating industrial development and population explosion of the last two centuries came quantities and concentrations of wastes which the ocean could not readily assimilate. 5 As the pace of dumping increased, the ocean's capacity to balance the global ecosystem declined, 6 marine creatures were killed or injured, and coastal beauty was threatened. 7 * A.B. 1973, J.D. 1976, University of California, Berkeley. 1. COUNCIL ON ENVIRONMENTAL QUALITY, REPORT TO THE PRESIDENT, OCEAN DUMPING: A NATIONAL POLICY (1970) [hereinafter cited as 1970 OCEAN DUMPING REPORT]. 2. See 1 COMM'N ON MARINE SCIENCES, ENGINEERING RESOURCES, SCIENCE & ENVIRONMENT to 11-13, to (1969) (Panel Reports). Oceans contribute to the oxygen-carbon dioxide balance in the atmosphere OCEAN DUMPING REPORT, supra note 1, at iii COMM'N ON MARINE SCIENCES, ENGINEERING & RESOURCES, MARINE RESOURCES AND LEGAL-POLITICAL ARRANGEMENTS FOR THEIR DEVELOPMENT, VII-7 to VII-15, VII-37 (1969) (Panel Reports). 4. See generally, id., at VII-235 to VII See S. REP. No. 451, 92d Cong., 1st Sess (1971) [hereinafter cited as S. REP. No. 451]. 6. For example, organic wastes, sulfides, and some metals that are dumped into ocean waters demand oxygen to decompose. Such materials have been known to create an oxygen deficit in the disposal area. This deficit alters the diversity of marine organisms in the area. See C.E. WARREN, BIOLOGY AND WATER POLLUTION CONTROL 58 (1971) [hereinafter cited as WARREN]. Additionally, the accumulation of oxygendemanding wastes can create a "reservoir of future oxygen demand" that effectively kills off marine organisms long after the dumping stops OCEAN DUMPING REPORT, supra note 1, at For example, many areas have been closed to shellfish harvesting because organisms in the area contain human pathogens or toxic chemicals in excess of Food and

3 ECOLOGY LAW QUARTERLY [Vol. 5:753 By the early 1970's, unregulated ocean dumping had gained recognition as a serious ecological problem. 8 In response, Congress enacted the Marine Protection, Research, and Sanctuaries Act,' which set up a regulatory structure designed to abate ocean pollution caused by uninhibited dumping. This Comment will analyze the effectiveness of current dumping regulations by first exploring the environmental problems caused by unregulated ocean dumping. The purpose and scope of the Act will then be examined. The third and fourth sections of this Comment will discuss, respectively, the administration of the Act by the Environmental Protection Agency (EPA) and by the Army Corps of Engineers (Corps). The final section will outline ocean dumping permit procedures and enforcement of the Act. I THE PROBLEM OF OCEAN DUMPING Before passage of the Act, the ocean was the preferred disposal site for many different kinds of wastes. It was, and often remains, less expensive to dispose of industrial by-products and municipal sewage offshore than to bury them on land.'" Additionally, because ocean disposal sites were far removed from inhabited areas, the adverse effects of such dumping were not readily noticeable, hence they were less objectionable than those of land disposal. A. Effects of Ocean Dumping Dredged spoils, the sediments collected by dredging operations, are Drug Administration standards. Many beaches have been closed to swimming because of high bacteria content of the waters. Unpleasant odors and unsightly debris threaten the aesthetic and economic value of coastal properties OCEAN DUMPING REPORT, supra note 1, at See generally D. Aitken, The Marine Environment: A Global Perspective, 56 SIERRA CLUB BULL. 4-9 (June 1971) [hereinafter cited as Aitken]; Letter from President Richard Nixon to the Congress of the United States, April 15, 1970, in 1970 OcANu DUMPING REPORT, supra note 1, at U.S.C et seq. (Supp. IV, 1974) [hereinafter cited as the Act]. The Marine Protection, Research, and Sanctuaries Act also is commonly referred to as the Ocean Dumping Act. See Opening Statement by Sen. Hollings, Hearing on the Marine Protection, Research & Sanctuaries Act of 1972 Before the Subcomm. on Oceans & Atmosphere of the Senate Comm. on Commerce, 94th Cong., 1st Sess., ser. 32, at 1 (1975). 10. See H.R. REP. No. 361, 92d Cong., 1st Sess. 14 (1971) [hereinafter cited as H.R. REP. No. 361]; 1970 OCEAN DUMPING REPORT, supra note 1, at 1-7. This preference was particularly noticeable among industries and municipalities in the New York-New Jersey area, where land disposal sites were either too far away or too costly to procure and operate, and where there was ready access to the ocean.

4 1976] OCEAN DUMPING REGULATION the most frequently dumped wastes. 1 Often they contain pollutants that are toxic to marine life. 12 Non-toxic dredged spoils, after sinking to the ocean floor, may physically damage marine organisms, especially when dumped in large quantities. 13 For example, they may smother organisms which live or reproduce on the bottom.' Toxic pollutants dumped into the ocean, whether from liquid industrial wastes" or municipal sewage sludge, 6 enter into the tissues of 11. In 1968, dredged spoils accounted for 80 percent (by weight) of all materials dumped OCEAN DUMPING REPORT, supra note I, at 3. By 1973, more than 85 percent (by weight) of all materials dumped consisted of dredged spoils. See ENvIRON- MENTAL PROTECTION AGENCY, SECOND ANNUAL REPORT ON ADMINISTRATION OF THE OCEAN DUMPING PERMIT PROGRAM 27 (1974) (12 million tons of non-dredged material dumped in 1973) [hereinafter cited as 1974 EPA REPORT]; Testimony of Col. R. Hughes, Hearings on Oversight for the Ocean Dumping Act Before the Subcomm. on Fisheries & Wildlife Conservation & the Environment and the Subcomm. on Oceanography of the House Comm. on Merchant Marine & Fisheries, 93d Cong., 2d Sess., ser. 38, at 83 (1974) (75.5 million -tons of dredged materials dumped in 1973) [hereinafter cited as Hughes Testimony]. 12. The Army Corps of Engineers estimated that more than one-third of all dredged spoils were contaminated. The kind, quantity, and concentration of pollutants in dredged materials depend almost entirely on the channel location from which the sediments come and on the nature of the nearest land-based polluters OCEAN DUMPING REPORT, supra note 1, at 4. Polluted dredged spoils contain high oxygen-demanding materials and heavy metals, including cadmium, chromium, lead, and nickel. Samples of dredged materials from the Great Lakes in 1969 contained these heavy metals in concentrations that are 13 to 6,100 times the concentrations considered toxic to marine life. Id. at 4 (Table 4). 13. Statement of K. Kamlet, Counsel for National Wildlife Federation, Hearings on Oversight for the Ocean Dumping Act Before the Subcomm. on Fisheries & Wildlife Conservation & the Environment and the Subcomm. on Oceanography of the House Comm. on Merchant Marine & Fisheries, 93d Cong., 2d Sess., ser. 38, at 100 (1974) [hereinafter cited as 1974 NWF Statement]. Dumping materials in deeper ocean waters may be especially damaging because the ocean floor may be below the "thermocline," where conditions are generally unvarying and where marine organisms are highly sensitive to changes. Hearings on the Dumping of Nerve Gas Rockets in the Ocean Before the Senate Comm. on Commerce, 91st Cong., 2d Sess., ser. 76, at 25 (1970) NWF Statement, supra note 13, at Industrial wastes (from factories, refineries, laboratories, mills, etc.) account for more than 10 percent (by weight) of all materials dumped. Industrial wastes dumped prior to passage of the Act often contained concentrated and highly toxic chemicals like cyanides and arsenical and mercuric compounds. The types and concentrations of pollutants in industrial wastes vary greatly because of the variety of industrial processes OCEAN DUMPING REPORT, supra note 1, at Sewage sludge is the concentrated, solid by-product from municipal sewage treatment of sewer waste waters; most of the concentrated sludge consists of organic wastes OCEAN DUMPiNG Ravowr, supra note 1, at 5. Sludge also may contain a high percentage of heavy metals, including copper, zinc, barium, manganese, and molybdenum in concentrations averaging several thousand times the concentrations considered toxic to marine organisms. See THE NATIONAL ESTUARINE POLLUTION STUDY 245 (1970). The concentration of pollutants in sludge depends on the sophistication of the municipal waste water treatment system; that is, better waste water treatment produces both purer recycled water and more concentrated sludge.

5 ECOLOGY LAW QUARTERLY [Vol. 5:753 minute marine organisms which extract nutrients directly from their surrounding water. 1 " As larger forms of marine life feed on these contaminated organisms, toxic substances become successively concentrated. The highest concentration levels eventually are reached in predatory marine mammals, birds, and humans."' Smaller organisms and marine mammals may suffer from impaired sensory, reproductive, and other vital functions as a result;' 9 where this process of "bio-concentration"' is sufficiently advanced, the animal may die. 2 " Human health may be endangered by concentrations of either human pathogens, such as hepatitis or polio virus, or heavy metals, such as mercury. 22 Ocean pollution can cause serious economic losses to the fishing industry. Many species of commercially desirable fish have been decimated or rendered inedible due to such pollution; 3 approximately 20 percent of this nation's shellfish beds have been closed by the Food and Drug Administration for public health reasons. 2 4 Prior to passage of the Act, floatible solid materials often were dumped in the ocean. 25 Due to the dynamics of ocean currents, such Although most sewage sludge is either incinerated or otherwise disposed of on land, ocean-dumped sludge still accounts for nine percent of all materials dumped. Cf *OCEAN DUMPING REPORT, supra note 1, at 3; 1974 EPA REPORT, supra note 11, at Some marine organisms, such as phytoplankton, extract nutrients directly from ocean waters and can store pollutants in concentrations from several hundred to several hundred thousand times the concentration of such pollutants in their environment. Testimony of B.H. Ketchum, Hearings on S Before the Subcomm. on Air & Water Pollution of the Senate Comm. on Public Works, 91st Cong., 2d Sess., ser. 13, at 2294 (1970) [hereinafter cited as 1970 Ketchum Testimony]. In one study, the concentration factor of phytoplankton ranged from 1,500 for cobalt to 40,000 for lead and 100,000 for aluminum. See 1970 OCEAN DUMPING REPORT, supra note 1, at 13 (Table 1). 18. See G.M. Woodwell, Changes in the Chemistry of the Ocean: The Pattern of Effects, GLOBAL EFFEcTS OF ENVIRONMENTAL POLLUTION 186 (S.F. Singer ed. 1970) OCEAN DUMPING REPORT, supra note 1, at 13; Report of the National Oceanic and Atmospheric Administration, Hearings on Oversight for the Ocean Dumping Act Before the Subcomm. on Fisheries & Wildlife Conservation & the Environment and the Subcomm. on Oceanography of the House Comm. on Merchant Marine & Fisheries, 93d Cong., 2d Sess., ser. 38, at 25 (1974). 20. The term bio-concentration is used to designate the process explained in the text accompanying notes supra. 21. See P.H. Abelson, Mythyl Mercury, 169 SCIENCE 3942 (1970) [hereinafter cited as Abelson]. See also 1970 OCEAN DUMPING REPORT, supra note 1, at Between 1953 and 1960, 111 persons near Minamata Bay, Japan, were either killed or suffered serious neurological damage from eating fish containing five to 20 parts per million of methyl mercury. These people ate fish from one-half to three times per day. In the United States, fish containing five parts per million have been found. Abelson, supra note 21, at OCEAN DUMPING REPORT, supra note 1, at ENVIRONMENTAL PROTECTION AGENCY, ANNUAL REPORT ON ADMINISTRATION OF THE OCEAN DUMPING PERMIT PROGRAM 7 (1973) [hereinafter cited as 1973 EPA REPORT]. 25. HEW's Bureau of Solid Waste Management estimated that up to 50 percent of solid wastes are floatibles. See 1970 OCE.AN DUMPING REPORT, supra note 1, at 6.

6 1976] OCEAN DUMPING REGULATION "floatibles" are unlimited in their ability to disperse and to pollute waters far from their disposal point. 2 " Floatibles may contain oil or other chemicals that can clog the breathing pores of marine organisms. 2 " Even when they do not bear toxic materials, such floatibles damage the ocean's aesthetic beauty. Perhaps the most serious problem posed by ocean dumping is the long range impact of various pollutants on the marine environment. Two examples deserve special mention. First, pollutants toxic to marine organisms affect some species more than others. The resulting diminution of species variety is known to upset the eco-balance of an affected area. 8 It is more disconcerting, however, that the cumulative global effects of local diminution cannot be predicted. 9 Second, organic wastes, particularly sewage sludge, require oxygen for decomposition. When such wastes are dumped, they can deplete the oxygen in the waters near the dump site to the extent that some marine organisms cannot survive. 30 This process of oxygen-depletion is inevitably accelerated by decomposition of the organisms that are killed, thereby creating an area where the oxygen deficiency will remain for years to come. 3 As these examples indicate, when the ocean's wasteassimilating capacity is exceeded, the resultant disruption of marine ecosystems and accelerated degradation of water quality may continue long after waste dumping has ceased. 3 2 Dumping of materials that may float or remain in suspension in ocean waters is now prohibited, unless the materials have been processed so that they will sink to the ocean bottom. 40 C.F.R (d) (1975). See note 102 infra. 26. One study discovered small white or opaque discs of plastic scraps in 50 percent of the water samples collected above the continental shelf between Cape Cod and Florida EPA REPORT, supra note 24, at 8. Another study found 290 grams of plastic per square kilometer on the high seas "over an area bounded within seven degrees of latitude by five degrees of longitude." Id. at 7. For a study of horizontal movement caused by ocean currents in the heavily used dumping grounds of the New York Bight, see 1970 Ketchum Testimony, supra note WARREN, supra note 6, at See Water Resources Engineers, Inc., Ecologic Responses to Ocean Waste Discharges: Results from San Diego's Monitoring Program (1970) (Report prepared for the California State Water Resources Control Board and the San Diego Regional Water Quality Control Board). 29. See Aitken, supra note 8, at See generally 1970 Ketchum Testimony, supra note 17. Dumping organic wastes such as sewage sludge also leads to accelerated growth of plants; such wastes act as a fertilizer. This process, in turn, leads to accelerated decomposition, which can harm other species (for example, when decomposed algae smother clam beds) and impair human amenities (for example, when decomposed seaweed creates an odorous rot at beaches) OCEAN DUMPING REPORT, supra note 1, at For a case study of this process, see 1973 EPA REPORT, supra note 24, at 7; 1970 Ketchum Testimony, supra note See 1973 EPA REPORT, supra note 24, at 7.

7 ECOLOGY LAW QUARTERLY [Vol. 5:753 B. The Problem of Unregulated Dumping Before passage of the Act, ocean dumping was expected to increase. Industrial production was rising, creating increased amounts of wastes; simultaneously, land disposal alternatives were diminishing due to higher costs and greater environmental awareness. 3 Higher levels of sewer-water treatment and anticipated population growths meant that sewage sludge would be both more concentrated and more abundant. 3 4 Existing laws were ineffective. There were virtually no regulatory controls over the dumping of wastes beyond the three mile territorial sea. 3 5 Several federal agencies were empowered to regulate limited facets of dumping activities within the territorial sea, but no agency attempted comprehensive regulation. Dumping of "refuse matter of any kind" into "navigable waters" without the permission of the Army Corps of Engineers was prohibited by Section 13 of the Rivers and Harbors Act of However, even though the 1966 decision of the Supreme Court in United States v. Standard Oil Co. 7 held that Section 13 prohibited the dumping of pollutants regardless of any effect on navigation, Corps regulations interpreting Section 13 consistently limited its applicability to deposits that obstruct or impede navigation. 8 The Corps did not use its permit authority under Section 13 to discourage marine pollution, 9 nor did it OCEAN DUMPING REPORT, supra note 1, at Id. at 10 & Only with regard to disposal of radioactive materials did a federal agency, the Atomic Energy Commission, have jurisdiction beyond the three-mile limit. See text accompanying notes infra U.S.C. 407 (Supp. IV, 1974). This section, commonly referred to as "Refuse Act," also prohibits unauthorized dumping into tributaries of navigable waters. However, wastes "flowing from streets and sewers and passing therefrom in a liquid state" are exempt from the prohibition. Id. For discussion of use of the term "Refuse Act," see United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, 658 n.5, 5 ERC 1332, 1333 n.5 (1973) U.S. 224, , 1 ERC 1033, 1035 (1966) C.F.R (1967); 33 C.F.R (e)(2) (1969); 33 C.F.R (e)(2) (1975). For discussion of the history of the official Army Corps of Engineers' interpretation of Section 13, see United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, , 5 ERC 1332, (1973). 39. Comment, The Refuse Act of 1899: Its Scope and Role in Control of Water Pollution, 1 ECOLOGY L.Q. 173, 175 (1971). Although the Corps had no permit program for Section 13 activity, there were prosecutions brought against those who engaged in such activity without a Corps permit. See, e.g., United States v. Standard Oil Co., 384 U.S. 224, 1 ERC 1033 (1966); United States v. Esso Standard Oil Co. of Puerto Rico, 375 F.2d 621, 1 ERC 1038 (3d Cir. 1970); United States v. U.S. Steel Corp., 328 F. Supp. 354, 2 ERC 1700 (N.D. Ind. 1970); United States v. Interlake Steel Corp., 297 F. Supp. 912, 1 ERC 1045 (N.D. I ). However, the Corps was not generally the party supplying information leading to the indictments. Id. For discussion of the view that enforcement of Section 13 is not conditioned upon the exist-

8 19761 OCEAN DUMPING REGULATION establish any formal permit program until More importantly, even with a permit program, the Corps could not regulate ocean dumping outside the territorial seas of the United States, where most dumping actually occurs. 41 The Federal Water Quality Administration (FWQA) was responsible for setting minimum federal water quality standards for state programs and for monitoring state compliance with those standards. 4 1 While it was responsible for discharges into inland and coastal waters, it had no regulatory power over the ocean dumping of wastes. The Atomic Energy Commission (AEC) 4 4 had jurisdiction over the processing, use, and disposal of all radioactive materials. 45 Using its complete control over disposal of radioactive materials, AEC had eliminated almost all ocean dumping of containerized radioactive wastes by In this limited area at least, existing controls have been effective." ence of a regulatory-permit program, see United States v. Pennsylvania Indus. Chem. Corp., 411 U.S. 655, , 5 ERC 1332, 1337 (1973). 40. The President announced establishment of a formal Section 13 permit program on Dec. 23, Exec. Order No. 11,574, 35 Fed. Reg (1970). Final Corps of Engineers regulations implementing the permit program became effective April 7, C.F.R (1972). The permit program was short-lived, however, because EPA permit authority under FWPCA superseded the Corps of Engineers' permit authority under Section 13 on Oct. 18, U.S.C. 1342(a)(5) (Supp. IV, 1974); 33 C.F.R (b)(4) (1975) OCEAN DUMPING REPORT, supra note 1, at 31. Cf. United States v. Rohm & Haas Co., 500 F.2d 167, 6 ERC 2016 (5th Cir. 1974) (barging of wastes approximately 100 miles out to sea not within scope of Refuse Act). Corps regulations at the outset of the Section 13 permit program did not assert authority to regulate in any ocean waters. 33 C.F.R (1971). Regulations extending Corps jurisdiction within the territorial sea became effective approximately one month before termination of the Section 13 permit program by FWPCA. 33 U.S.C. 1342(a)(5) (Supp. IV, 1974); 33 C.F.R (k)(1) (1973). 42. Sections of FWPCA, 33 U.S.C (Supp. IV, 1974). 43. See 1970 OCEAN DumPING REPORT, supra note 1, at The AEC was abolished by the Energy Reorganization Act of U.S.C. 5814(a) (Supp. IV, 1974). All licensing and regulatory functions of the AEC have, since Jan. 19, 1975, been transferred to the Nuclear Regulatory Commission. 42 U.S.C. 5841(f) (Supp. IV, 1974); Exec. Order No. 11,834, 40 Fed. Reg (1975) U.S.C. 2201(b) & (j) (Supp. IV, 1974). 46. The AEC set up a permit program for disposal of all radioactive wastes in C.F.R (1958). It issued no new permits for ocean disposal of radioactive materials after 1960, and only a handful of agencies were still authorized to dump as of Perhaps a more compelling factor was the relative low cost of land disposal compared to sea disposal of such wastes. See 1970 OCEAN DUMPING REPORT, supra note 1, at 6-7. Dumping of high-level radioactive wastes is absolutely prohibited by the Ocean Dumping Act. 33 U.S.C. 1412(a) (Supp. IV, 1974). 47. The progeny of AEC, the Nuclear Regulatory Commission, continues to regulate the disposal of most radioactive wastes by a permit program. 10 C.F.R.

9 ECOLOGY LAW QUARTERLY II [Vol. 5:753 GENERAL PROVISIONS OF THE ACT The Act has two explicit purposes: (1) to regulate, as much as possible, all disposal of wastes in ocean waters and (2) to strictly limit or prevent any such dumping that would adversely affect "human health, welfare, or amenities; or the marine environment, ecological systems, or economic potentialities." 4 A. Jurisdiction The Act attacks the problem of ocean dumping in two ways. First, it bans all dumping of materials within 12 nautical miles of the United States without a permit. 49 Second, it prohibits all transportation of materials from the United States for the purpose of ocean dumping, unless authorized by permit (1975). However, ocean dumping of high-level radioactive wastes is absolutely prohibited by the Ocean Dumping Act. 33 U.S.C. 1412(a) (Supp. IV, 1974) U.S.C. 1401(b) (Supp. IV, 1974) U.S.C. 1411(b) (Supp. IV, 1974). The twelve-mile limit is measured from the base line from which the territorial sea of the United States is measured, as provided for in the Convention on the Territorial Sea and the Contiguous Zone, [1964] 15 U.S.T. 1606, T.I.A.S. No. 5639, 516 U.N.T.S. 205, 33 U.S.C. 1402(b) & 1411(b) (Supp. IV, 1974) U.S.C. 1411(c) (Supp. IV, 1974). As passed in 1972, the Act only regulated transportation for dumping by any vessels originating from the United States. Vessels flying the United States flag, but originating from a foreign port and not dumping in the territorial sea or contiguous zones of the United States, were not regulated. For example, United States ships could transport wastes from foreign ports and dump them on the high seas. The Act was amended in 1974 to extend coverage to vessels transporting materials for dumping from locations outside the United States. H.R. REP. No. 568, 93d Cong., 1st Sess. 4 (1973) [hereinafter cited as H.R. REP. No. 568]. Even if a vessel is not flying a United States flag and has not left a United States port, the Act still prohibits that vessel from dumping wastes into the territorial seas or contiguous zones of the United States unless it has been authorized previously by permit. 33 U.S.C. 1411(b) (Supp. IV, 1974). Note that the Act treats "ocean waters" as a single unit including not only the high seas, but also the "territorial sea" and its "contiguous zone" as defined by the Convention on the Territorial Sea and Contiguous Zone, [1964] 15 U.S.T. 1606, T.I.A.S. No. 5639, 516 U.N.T.S. 205, 33 U.S.C. 1402(b) (Supp. IV, 1974). The Act differs significantly in this regard from both the original Senate definition, which had excluded the territorial sea, and the original House definition, which had included estuarine and internal waters along with the territorial sea and contiguous zone. The House-Senate Conference Committee decided to include the territorial sea within the definition, thus treating ocean waters as a single unit, in order to avoid administrative problems that would result from regulation only of dumping outside the territorial sea. Further, the committee decided to exclude estuarine waters from the definition in order to avoid overlap with FWPCA, since FWPCA jurisdiction extended over estuarine and internal waters inside the base line from which the territorial sea is measured. HOUSE-SENATE

10 19761 OCEAN DUMPING REGULATION Transportation of wastes was used as the basis for asserting jurisdiction beyond the 12 mile limit in order to avoid the international conflict that could result from an attempt to regulate actual dumping on the high seas, especially when foreign vessels are involved. 5 " Regulating the act of transportation eliminates such problems, since a sovereign's commerce power includes the power to regulate transportation of materials from the sovereign's borders. 2 Basing the Act on transportation for the purpose of dumping, however, fails to provide for instances where materials originally shipped for some other purpose subsequently may be dumped on the high seas. The Act expressly regulates transportation for the purpose of dumping on the high seas, not all purposeful dumping. The Act should be interpreted to cover this apparent omission. The Act's legislative history indicates Congressional intent to regulate all purposeful dumping of materials transported from the United States. The Act provides that "it is the purpose of the United States to regulate the dumping of all types of materials."" 3 The legislative history supports the notion that express regulation of transportation was only the putative means toward this end. 4 Additionally, the Act states that materials can be dumped at sea in an emergency, whether or not authorized by permit." ' This exemption implies that the Act regulates CONF. REP. No. 1546, 92d Cong., 2d Sess. 14 (1972) [hereinafter cited as HOUSE-SEN- ATE CONF. REP. No. 1546]. 51. S. REP. No. 451, supra note 5, at 19. See also Letter from EPA to Hon. E.A. Gannantz, April 6, 1971, in H.R. REP. No. 361, supra note 10, at 43-45, (1971). Congress was aware that ocean dumping was a world-wide problem prior to passage of the Act. It intended the Act to help abate the global aspects of the problem by regulating the dumping activities of a major polluter, the United States, and by spurring international action. See H.R. REP. No. 361, supra note 10, at 14; S. REP. No. 451, supra note 5, at 16. Accordingly, the Act provides for cooperation and coordination of ocean dumping regulation at the international level. It directs the United States Department of State to support and present to international organizations proposals that are consistent with the Act's policy. 33 U.S.C (Supp. IV, 1974). The Act has been amended to incorporate an agreement signed by the United States at the International Ocean Dumping Convention in See H.R. REP. No. 568, supra note 50, at 3. These amendments provide that EPA should establish domestic criteria for ocean dumping that conform to standards agreed upon by other signatories, provided the Act's requirements will not be relaxed thereby. 33 U.S.C. 1412(a) (Supp. IV, 1974). The amendments also direct EPA to honor permits issued by other signatories, provided that such permits could have been issued under United States regulations and criteria. 33 U.S.C. 1412(e) (Supp. IV, 1974). For a more detailed discussion of the Ocean Dumping Convention and the United States involvement in that convention, see T. Leitzell, The Ocean Dumping Convention- A Hopeful Beginning, 10 SAN DIEGO L. REV. 502 (1973). 52. S. REP. No. 451, supra note 5, at U.S.C. 1401(b) (Supp. IV, 1974). 54. S. REP. No. 451, supra note 5, at 19; H.R. REP. No. 361, supra note 10, at U.S.C. 1415(h) (Supp. IV, 1974).

11 ECOLOGY LAW QUARTERLY [Vol. 5:753 the dumping of all materials, even when not transported for the purpose of dumping. The Act provides maximum coverage over both the content and manner of dumps, without duplicating other environmental statutes. It controls the dumping of any kind of matter, with limited exceptions; 56 similarly, it extends to dumping in any manner, again with limited exceptions. 5 7 Moreover, these exceptions are largely in areas already covered by other environmental statutes and are defined specifically in terms of coverage under those statutes in order to avoid loopholes. 58 For example, placements or constructions of structures not intended for disposal and continuous discharges from outfall structures are excluded from coverage of the Act, but only when they are otherwise regulated by federal or state laws." Further, the Act complements the Federal Water Pollution Control Act (FWPCA), which regulates continuous discharges into internal and 56. "Materials" regulated under the Act include matter of any kind, with the exception of (1) sewage from vessels as defined in 33 U.S.C and (2) "oil' within the meaning of 33 U.S.C so long as it is not taken on board a vessel or aircraft for the purpose of dumping. 33 U.S.C. 1402(c) (Supp. IV, 1974). Congress thought the materials listed in the exceptions were adequately regulated by FWPCA. S. REP. No. 451, supra note 5, at 17. Note that accidental spillage of oil on the high seas is regulated under the Intervention on the High Seas Act, 33, U.S.C et seq. (Supp. IV, 1974) U.S.C. 1402(f) (Supp. IV, 1974). The following activities are not considered "dumping" as defined by the Act: (1) effluents discharged from "outfall structures" (e.g., pipes from sewage treatment or atomic energy plants) insofar as such effluents are regulated under FWPCA, 33 U.S.C et seq. (Supp. IV, 1974), under the Refuse Act, 33 U.S.C. 407 (Supp. IV, 1974), or under the Atomic Energy Act of 1954, 42 U.S.C et seq. (Supp. IV, 1974); (2) routine discharges incidental to operation of vessels; (3) placements of devices or construction of any fixed structure in ocean waters for a purpose other than disposal; and (4) deposits for the purpose of developing fisheries resources. 33 U.S.C. 1402(f) (Supp. IV, 1974). It was anticipated that to define "dumping" in terms of "deposition" of materials would obviate any unnecessary restriction of activities where deposition of materials in ocean waters was not the primary objective, for example, the shooting of gun projectiles or launching of missiles that would fall into ocean waters. Letters from the EPA Administrator to Hon. Spiro T. Agnew, February 10, 1971, in S. REP. No. 451, supra note 5, at 30. One such activity explicitly exempted from regulation by the Act is the operation of vessels with equipment that routinely discharges effluents incidental to their operation or propulsion. 33 U.S.C. 1402(f) (Supp. IV, 1974). 58. See notes 56 & 57 supra U.S.C. 1402(f) (Supp. IV, 1975). Activity contemplated under exclusion for placements and constructions includes placement of national defense or environmental monitoring and surveillance equipment on the ocean floor by government agencies, as well as the placement of "lobster traps, off-shore drilling platforms, pipelines, or cables." Letter from the EPA Administrator to Hon. Spiro T. Agnew, February 10, 1971, in S. REP. No. 451, supra note 5, at 29. The exclusion of discharges from outfall structures was intended generally to limit jurisdiction of the Act to ocean dumping from vessels and to allow the FWPCA jurisdiction over ocean discharges from on-shore facilities or from fixed off-shore structures such as sewage pipelines. See S. REP. No. 451, supra note 5, at

12 1976] OCEAN DUMPING REGULATION marine waters. " ' The definition of "materials" covered by the Act is almost coextensive with that of "pollutants" regulated by the FWPCA. 6 1 The Act also uses the same general criteria for evaluating permit applications as does the FWPCA. 6" These similarities help ensure that the national program to abate all water pollution will be internally consistent; banning ocean dumping of a certain material would have little effect if its discharge into ocean-bound rivers were not prohibited. B. Joint EPA-Corps Authority The Act provides for the regulation of all dumping by a permit program. " It divides the power to issue permits between the EPA and the Army Corps of Engineers. 64 EPA sets criteria for evaluation of all permit applications and issues permits for the dumping of all materials except dredged spoils.1r ' The Corps issues permits for the dumping of dredged spoils using EPA's criteria." ' U.S.C (Supp. IV, 1974). The Act regulates only the dumping of materials and exempts any continuous discharge from an outfall structure to the extent regulated by FWPCA. 33 U.S.C. 1402(f) (Supp. IV, 1974). See note 59, supra. FWPCA also regulates discharges into estuarine waters. 33 U.S.C. 1254(n) (Supp. IV, 1974) U.S.C. 1412(a) (Supp. IV, 1974); 33 U.S.C. 1343(c) (Supp. IV, 1974). See 1974 EPA REPORT, supra note 1I, at 10, C.F.R (b) (1975) U.S.C (Supp. IV, 1974). A permit is not required for dumping fish wastes except when deposited in harbors or other protected or enclosed coastal waters or where the EPA Administrator finds that the deposits could endanger health, the environment, or the ecological systems in a specific location. 33 U.S.C. 1412(d) (Supp. IV, 1974). Additionally, since the Act provides no penalties for dumping without a permit to safeguard life at sea in an emergency, a permit is not required for such dumping. 33 U.S.C. 1415(h) (Supp. IV, 1974). Permits issued by any state or federal agency other than those issued pursuant to the Act are void. 33 U.S.C. 1416(a) (Supp. IV, 1974). The only exception is for permits issued prior to the Act and pursuant to the Rivers and Harbors Act of U.S.C. 1416(b) (Supp. IV, 1974). All state regulation of dumping activities is expressly preempted by the Act. 33 U.S.C. 1416(d) (Supp. IV, 1974) U.S.C (Supp. IV, 1974) U.S.C (Supp. IV, 1974). However, EPA does have jurisdiction over dumping of dredged materials excavated from locations outside the United States, since dredged materials, as defined in the Act, include only materials excavated from navigable waters of the United States, and EPA has jurisdiction over dumping of all other materials. 33 U.S.C. 1402(i) & 1412(a) (Supp. IV, 1974). EPA has jurisdiction over American vessels transporting dredged materials from locations outside the United States. Congress thought it appropriate to allow EPA such jurisdiction, since Corps of Engineers power to dispose of dredged spoils excavated from United States waters was granted to retain power for issuing permits for dumping of dredged materials to the agency with authority to issue permits for dredging in the navigable waters of the United States. This rationale for the division of labor was absent in the case of disposal of dredged materials excavated from outside the United States. H. REP. No. 568, supra note 50, at U.S.C (Supp. IV, 1974).

13 ECOLOGY LAW QUARTERLY [Vol. 5:753 The division of authority was intended to promote uniform criteria for the evaluation of all dumping activities without "unreasonably" restricting dredging operations." 7 However, this provision was approved amidst intense controversy" and continues to engender criticism. Whereas EPA is charged with primary responsibility for protecting the national environment, the Corps is concerned mainly with the navigability of waterways. 69 Thus, the division of regulatory authority inhibits cohesive environmental regulation over all dumping practices 7 " and frustrates coordination of efforts to abate other sources of pollution in the marine environment. 7 ' More importantly, by granting the Corps 67. HOUSE-SENATE CONF. REP. No. 1546, supra note 50, at 15. Congressional concern about possible hampering of dredging operations necessary for navigation and commerce also is evidenced by the fact that the Act contains two provisions for intervention by the Corps of Engineers whenever its operations might be threatened. These two provisions call for EPA to consult with the Corps when the criteria EPA promulgates may affect civil works, and for a Corps veto power over issuance of any permit by EPA where navigation would be unreasonably impaired. 33 U.S.C. 1412(a) & 1416(c) (Supp. IV, 1974). For additional discussion of the rationale behind the Act's dredged material provisions, see note 65 'supra. 68. HOUSE-SENATE CONF. REP. No. 1546, supra note 50, at 15. There had been much controversy in Congress over the question of whether or not to centralize regulation of all dumping activities under EPA. The bill backed by both EPA and the Nixon Administration, H.R. 4723, would have consolidated control over all dumping activities "in EPA, an agency which has as its chief purpose the protection of the environment, and which possesses the research and regulatory capability necessary for developing and carrying out a comprehensive ocean dumping policy." Letter from EPA to Hon. E.A. Garmantz, Chairman, House Comm. on Merchant Marine & Fisheries, April 6, 1971, in H.R. REP. No. 361, supra note 10, at 44. See also Letter from the EPA Administrator to Hon. Spiro T_ Agnew, President of the Senate, February 10, 1971, in S. REP. No. 451, supra note 5, at 27. The Senate version of H.R. 9727, the bill eventually enacted, provided that EPA was to review all applications for dumping permits but would issue permits for dumping of dredged spoils where the Corps certifies that it is the only reasonable alternative, absent EPA finding that the dumping would threaten municipal water supplies, certain specified marine habitats, and recreational areas. S. REP. No. 451, supra note 5, at 3. The original version of H.R. 9727, as passed by the House, was the version adopted by the House-Senate Conference Committee to be enacted as the Ocean Dumping Act. See HouSE-SENATE CONF. REP. No. 1546, supra note 50, at See 1970 OCEAN DUMPING REPORT, supra note 1, at See 1970 OCEAN DUMPING REPORT, supra note 1, at 33. By the very fact that authority over dumping practices is vested in two separate agencies, the Act encourages differential regulation that is not based on relevant differences in the dumping practices regulated. An example of this lack of cohesive regulation is the different EPA and Corps regulations governing requests for public hearing. Thus, whether or not one needs to have "a demonstrated interest which may be affected" by dumping in order to successfully request a public bearing depends only on whether or not the permit application under consideration is for ocean dumping of dredged spoils, or for the dumping of some other material. See text accompanying notes infra. 71. See 1970 OCEAN DUMPING REPORT, supra note 1, at 33. Municipal and industrial discharge in rivers and harbors, urban and rural runoff, and other sources are important components of marine pollution. A regulatory program for ocean dumping should be defined to complement the

14 19761 OCEAN DUMPING REGULATION power to regulate all dumping of dredged materials, the Act vests regulatory control in an agency which is the major producer and dumper of dredged spoils. 72 Much of the criticism of the present regulation of ocean disposal of dredged materials 7 " can be traced to this "conflict of interest." 4 The Act contains a complex formula by which EPA and the Corps are to settle any disputes arising from their joint regulation of dredged spoil dumping. After an independent evaluation of the effects of a proposed dump, but before actual issuance of a permit, the Corps must notify EPA of its intention to issue the permit. 75 Should EPA disagree with the Corps' judgment as to the proposed dumping's compliance with either the criteria governing the effects of dumping or the restrictions on "critical areas," the Corps may not issue a permit absent EPA's waiver of its objections. 70 However, if the Corps specifically requests a waiver, after finding that there is no economically feasible alternative to the proposed dumping, EPA must consent unless it then determines that the dumping will have "an unacceptably adverse impact" on municipal water supplies, certain specified marine habitats, or recreational areas. 77 These procedures for dispute resolution never have been fully utilized, even though EPA occasionally has disagreed with the Corps' issuance of permits. 75 This failure is due in part to an oversight by the efforts in these other areas.... The Environmental Protection Agency will have the broad responsibility as well as the ncessary supporting programs to protect the marine environment. Id. This impediment to a coordinated effort to reduce marine pollution is aggravated by the fact that quantitatively, if not qualititatively, dredged spoils account for the majority of harmful materials that are dumped into ocean waters. See text accompanying notes 11-14, supra. 72. In 1973, the Corps dumped 63 million tons of dredged materials while private operators dumped only 12.5 million tons. Hughes Testimony, supra note 11, at For a discussion of the short-comings of present regulation of dredged spoils disposal in ocean waters, see text accompanying notes , inira. 74. Since "[t]his is the type of conflict of interest that the creation of the Environmental Protection Agency was designed to prevent," the congressional concern, that separating the power over dumping of dredged material from the Corps' traditional power over dredging operations would hamper the navigation necessary for commerce, appears unwarranted. Cf OCEAN DUMPING REPORT, supra note 1, at 31, 33. For discussion of the congressional rationale, see text accompanying notes 67-68, supra U.S.C. 1413(c) (Supp. IV, 1974). 76. Id U.S.C. 1413(d) (Supp. IV, 1974). The marine habitats specified in this section are shellfish beds, wildlife areas, and fisheries, including spawning and breeding areas. Id. For discussion of the view that the Act's complex formula for resolving disputes between EPA and the Corps is effectively bypassed by EPA's criteria for dredged materials, see text accompanying notes infra. 78. See EPA Responses to Questions Submitted by Senate Comm. on Commerce, Hearings on the Marine Protection, Research & Sanctuaries Act of 1972 Before the Subcomm. on Oceans & Atmosphere of the Senate Comm. on Commerce, 94th Cong.,

15 ECOLOGY LAW QUARTERLY [Vol. 5:753 Act's drafters and in part to EPA's misreading of the dispute resolution provisions. These provisions imply that EPA may review the Corps' approval of permit applications. 7 9 Nevertheless, they contain neither an explicit mandate for review of Corps' actions nor express guidelines by which to make such review."' Additionally, EPA apparently believes that the Corps is authorized to issue permits over its objections, so long as the Corps has determined that there is no other economically feasible method or site available."' Thus, EPA has failed to press its objections 8 2 and to preclude issuance of permits; neither has EPA waived its objections pursuant to the statutory scheme. s 3 However, the Act states that the Corps may not issue permits to which EPA objects, absent EPA's waiver. 8 4 It additionally provides that a Corps determination Ist Sess., ser. 32, at 29 (1975) [hereinafter cited as 1975 EPA Responses]; Testimony of J.R. Quarles, Deputy Administrator of EPA, Hearings on Oversight for the Ocean Dumping Act Before the Subcomm. on Fisheries and Wildlife Conservation & the Environment and the Subcomm. on Oceanography of the House Comm. on Merchant Marine & Fisheries, 93d Cong., 2d Sess., ser. 38, at 20 (1974) (hereinafter cited as 1974 EPA Testimony]. Of the approximately 100 Corps permit applications reviewed by EPA as of May 22, 1974, two permits failed to meet the criteria for unpolluted dredged materials, and EPA "recommended" dumping the materials further out at sea. However, the Corps allowed the permittees to dump at the sites it previously had selected. No other action was taken by EPA. Id U.S.C. 1414(d) (Supp. IV, 1974). 80. Despite the lack of a statutory mandate, EPA's regulations do provide a procedure for reviewing and objecting to Corps permits. 40 C.F.R (1975). While EPA regulations do not expressly provide for review of the Corps' own projects, but only Corps permits, such Corps decisions presumably will be reviewed also under EPA regulations regarding Corps permits, since the Act states that Corps projects and permits must be evaluated according to the same procedures. 33 C.F.R et seq. (1975); 33 U.S.C. 1413(e) (Supp. IV, 1974). See generally text accompanying notes infra. 81. With respect to a number of permits we had determined that our criteria would not be met. The COE [Corps of Engineers] however has authority to issue a permit if it determines that "there is no economically feasible method or site available other than a dumping site the utilization of which would result in noncompliance... No EPA waivers from the specific permit requirements, as allowed for in section 103(d) [33 U.S.C. 1413(d) (Supp. IV, 1974)], have been necessary to date EPA Responses, supra note 78, at It may be that some of EPA's objections were not fully considered by the Corps. Corps regulations provide that once an application for a permit to dump dredged materials has been approved, the appropriate EPA regional office will be notified and allowed fifteen days within which to object. 33 C.F.R (g)(17)(iv) (1975). EPA regulations, however, provide that the EPA regional office will notify the appropriate Corps district office of such objection within thirty days after receipt of the Corps notice. 40 C.F.R (1975). EPA thus allows itself thirty days in which to object, while the Corps will wait only fifteen days for EPA objections before issuance of permits. 83. See note 81 supra. 84. See note 79 supra.

16 1976] OCEAN DUMPING REGULATION that no economically feasible alternative exists is only a basis for the Corps to request EPA's waiver, not grounds for issuance of the permit over EPA objections. 8 5 m THE EPA PERMIT PROGRAM The Act authorizes EPA to establish criteria for evaluation of all ocean dumping permit applications, 6 to establish permit categories for the waste types under EPA jurisdiction, 7 and to designate sites appropriate for ocean dumping. 8 8 A. The EPA Permit System The Act lists factors which EPA should consider in establishing and applying its criteria, including: (1) the need for ocean dumping and the land disposal or recycling alternatives available; s (2) the effects of dumping on human health and welfare 0 and on alternative uses of the oceans;"' and (3) the effects of ocean disposal on the marine environment and marine ecosystems." Accordingly, EPA has issued regulations which both classify wastes by their chemical and physical properties 3 and establish several different types of dumping permits. 94 A particular class of waste can be dumped only after the permit appropriate for that class has been secured. The dumping of some materials is absolutely prohibited. 95 Socalled "prohibited" and "strictly regulated" types of materials may be dumped under the restrictive conditions of "interim" and "special" 85. Id U.S.C. 1412(a) (Supp. IV, 1974) U.S.C. 1412(b) (Supp. IV, 1974) U.S.C. 1412(c) (Supp. IV, 1974) U.S.C. 1412(a)(A) & (G) (Supp. IV, 1974) U.S.C. 1412(a)(B) & (C) (Supp. IV, 1974). These effects encompass economic, aesthetic, and recreational values such as the use of fisheries, wildlife, shorelines, and beaches. Id. 91. Such alternative uses mentioned scientific study, fishing, and other exploitation of the oceans' living and non-living resources. 33 U.S.C. 1412(a) (H) (Supp. IV, 1974) U.S.C. 1412(a)(D) (Supp. IV, 1974). EPA is to consider, among other things, the effects of dumping upon "ecosystem diversity, productivity and stability." Id. 93. See generally 40 C.F.R. Part 227 et seq. (1975) C.F.R (1975). The Act explicitly provides that EPA may establish and issue various categories of permits. 33 U.S.C. 1412(b) (Supp. IV, 1974). EPA has established five permit categories: general, special, interim, emergency, and research permits. 40 C.F.R (1975). Only general, special, and interim permits will be discussed in this Comment. 95. See text accompanying notes infra.

17 ECOLOGY LAW QUARTERLY [Vol. 5:753 permits., Materials whose chemical composition allows classification as "less strictly regulated" materials may be dumped under "special" or "general" permits. "7 I. Absolutely Prohibited Materials EPA regulations "absolutely prohibit" the dumping of certain materials;!" EPA will never issue permits for the ocean disposal of such wastes.'" The Act itself bans the dumping of (1) biological and chemical warfare agents; (2) high-level radioactive wastes; and (3) any material whose dumping would violate the water quality standards of a state."' Additionally, the regulations provide that EPA will never issue permits for dumping materials that (1) will "float or remain in suspension" 102 or (2) will introduce new biological pests or non-indigenous species of living organisms."" ' Although dumping of these two types of materials is not expressly prohibited by the Act, EPA's power to prevent it is easily inferred from EPA's permit authority. The Act authorizes EPA to issue permits only in those cases where it "determines that such dumping will not unreasonably degrade or endanger" the marine environment. 104 This authority should include, as a logical and necessary corollary, the power to prohibit the dumping of materials that EPA 96. For discussion of "prohibited" materials, see text accompanying notes infra. For discussion of "strictly regulated" materials, see text accompanying notes infra. 97. For discussion of "less strictly regulated" materials, see text accompanying notes infra. 98. This author. chose the term "absolutely prohibited materials" to distinguish materials discussed in this section from those which EPA designates "prohibited" because dumping of the latter is not prohibited under all circumstances. See text accompanying notes infra C.F.R (1975) U.S.C. 1412(a) (Supp. IV, 1974). These materials are thought to "pose a hazard of [such] unknown but substantial dimensions" that the Act prohibits their dumping under any circumstances. H.R. REP. No. 361, supra note 10, at 13. The regulatory definition of such wastes is found in 40 C.F.R (1975) U.S.C. 1412(a) (Supp. IV, 1974). This dumping ban presumably was to ensure consistency between FWPCA and the Act. The original House bill, H.R. 9727, extended jurisdiction over dumping in estuarine waters; the consistency problem undoubtedly seemed more acute when the Act and FWPCA might have regulated the same geographic areas. See H.R. REP. No. 362, supra note 10, at C.F.R (d) (1975). The prohibition against floatibles appears not to be absolute because the regulations do provide that floatible materials may be dumped where they "have been processed in such a fashion that they will sink to the bottom and remain in place." However, this exception to the general prohibition is both deceptive and unnecessary since materials thus processed would, by definition, not "float or remain in suspension" as specified in the provision prohibiting floatible materials. Id C.F.R (1975) U.S.C. 1412(a) (Supp. IV, 1974).

18 1976] OCEAN DUMPING REGULATION concludes will always unreasonably degrade the environment. Apparently, EPA has determined that floatable materials and infectious living organisms unreasonably degrade the environment. 2. Prohibited Materials: Special and Interim Permits EPA regulations require denial of permits for ocean disposal of wastes containing any of several types of "prohibited materials"' ' 5 unless such materials are present only as "trace contaminants."' 0 0 However, the broad definition given "trace contaminants" actually allows most wastes containing these so-called prohibited materials to be dumped." T In fact, only wastes which contain prohibited materials in concentrations above certain specified ratios" 8 and which come from industries using or producing these materials 1 9 are actually prohibited These "prohibited materials" are organophalogen, mercury, cadmium, oil, and their various compounds. 40 C.F.R (a)-(d) (1975) C.F.R (1975) Prohibited materials are considered to be trace contaminants either when they are present in sewage sludge, dredged material, or in wastes from industries not directly using or producing the materials, or when they are present in concentrations below certain specified concentration ratios. 40 C.F.R (e)-(f) (1975) The regulations provide for the following concentration ratio limits: (I) 0.75 mg/kg for mercury present in any solid phase of a waste and 1.5 mg/kg for mercury in any liquid phase of a waste; (2) 0.6 mg/kg for cadmium in any solid phase of a waste and 3.0 mg/kg, in any liquid phase of waste; (3) for organophalogens, 0.01 mg/kg concentiation shown to be toxic to marine organisms in a bioassay; (4) for oils, no visible surface sheen in an undisturbed sample when added at a rate of one part of waste material to 100 parts of water. 40 C.F.R (f)(1 )-(4) (1975) C.F.R (e) (1975) provides: The materials listed in paragraphs (a)-(d) of this section will be considered as trace contaminants when they are present in sewage sludge, dredged material, or in wastes from industries which do not use or produce the constituents identified in this section. 40 C.F.R (g) (1975) provides: Those constituents identified in paragraphs (a)-(d) of this section will be regarded as trace contaminants in the waste material of an industrial process or plant which uses them as raw materials or produces any of them only when the limitations of paragraph (f) of this section are not exceeded. "Prohibited" materials are present as trace contaminants both when in sewage sludge, dredged material, and wastes from industries not using or producing such materials, and when in wastes of industries using or producing them if their presence is below the specified concentration ratios. Thus, the only instance where such materials would not be present as trace contaminants would be when they are in concentrations above the specified ratios and from industries using or producing them. Moreover, trace contaminants may be dumped by special permit when they are within the limitations of 40 C.F.R (f), and by an interim permit when they are not within those limitations. 40 C.F.R (f) & 220.3(d) (1975). Accordingly, the only case where prohibited materials cannot be dumped is when such materials are both present in excess concentrations and not present as trace contaminants (i.e., they are from industries directly using or producing such wastes). For incisive criticism of the trace contaminant definition, 33 C.F.R (e) (1975), see National Wildlife Federation, Petition Proposing Amendment and Request-

19 ECOLOGY LAW QUARTERLY [Vol. 5:753 Wastes containing trace contaminants may be dumped under two permit categories. If contaminants are present in concentrations below the specified ratio, a "special permit" must be obtained. 11 If, however, the concentration of contaminants exceeds that ratio and if the waste is from an industry not using or producing the contaminants, the more restrictive "interim permit" is necessary."' a. Special Permits A special permit may be issued when the materials proposed for dumping contain no absolutely prohibited materials' 1 and meet either the concentration ratio limitations for prohibited materials" 1 ' or the "limiting permissible concentrations" (LPC)" 4 restrictions for strictly regulated materials.' 15 Such a permit allows the specified permitee to dump certain amounts of particular wastes for a limited period of time, which cannot exceed three years."' Upon application, EPA may renew the permit. 117 ing Revision of EPA Criteria and Regulations, Hearings on Oversight for the Ocean Dumping Act Before the Subcomm. on Fisheries & Wildlife Conservation & the Environment and the Subcomm. on Oceanography of the House Comm. on Merchant Marine & Fisheries, 93d Cong., 2d Sess., ser. 38, at (1974) [hereinafter cited as 1974 NWF Petition to EPA) C.F.R (f) & 220.3(b) (1975) C.F.R (d) (1975) For discussion of "absolutely prohibited" materials, see text accompanying notes supra For a listing of these materials and their concentration ratios, see note 108, supra LPC is defined as the concentration of the material that is no more than one percent of a concentration of that material which would either harm sensitive marine organisms in a bioassay or otherwise endanger the marine environment. 40 C.F.R (1975) C.F.R (b) (1975). For discussion of strictly regulated materials, see text accompanying notes infra. An applicant for a special permit must furnish EPA with physical and chemical descriptions of the waste sufficient for EPA to evaluate the materials in the waste under criteria relevant to the particular materials present. 40 C.F.R (b) & 221.1(c) (1975). Such description includes the results of any tests (e.g., bioassay) required for the particular waste materials. 40 C.F.R (c) (1975). A variety of other information also is required, including the source of the waste, how it was disposed of previously, and why there are no appropriate alternatives to ocean disposal. 40 C.F.R (b) & 221.1(h)-(j) (1975). Additional requirements include identification of the applicant, the dumper, and the dump site; descriptions of the physical nature of the dump site, means of conveyance, and method of disposal; and a listing of the dates and times of disposal. 40 C.F.R (a),(b), (e)-(g) (1975) C.F.R (b) (1975) C.F.R (b) (1975). Ambiguities in the regulation allow the inference that a renewal for a special permit will not be evaluated as thoroughly as the original application for that permit. The regulation gives no hint as to whether an application for renewal will entail the same

20 1976] OCEAN DUMPING REGULATION However, unlike holders of interim permits, special permitees need not actively develop alternatives to ocean disposal so as to eventually eliminate dumping. 118 This omission is unwise; absent efforts by existing dumpers, viable alternatives to such disposal probably will not be found. Thus, dumping of prohibited and "strictly regulated" wastes may continue indefinitely, so long as such wastes meet respective trace and LPC limitations. 11 This situation reflects EPA's views that the drafters of the Act intended only to limit, not to ban, ocean dumping, 120 and that continuous dumping of wastes within trace and LPC limitations will not damage the marine environment.' 2 ' Nevertheless, it is doubtful whether this omission comports with at least two Congressional concerns. First, the Congressional declaration of policy in the Act states that "it is the policy of the United States...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."' 22 Unless it can be safely assumed that dumping of prohibited or strictly regulated materials within the limits prescribed for special permits does not adversely affect any human amenities or marine environments, the exemption of special permittees from active development of dumping procedures by the applicant and the same process of review by EPA as for an original permit, whether the renewal process will be an abbreviated version of the application process, or whether a renewal may be given without any re-evaluation whatsoever. Id. With the more restrictive interim permit, however, a reapplication rather than a renewal is required for dumping beyond the original expiration date. 40 C.F.R (d)(2) (1975). Thus a special permit renewal presumably will not be evaluated as thoroughly as the original permit application. Were the renewal for special permits to entail the same procedures as an original application, the regulation could have called for reapplication for special as well as for interim permits The requirement for the development of implementation plans placed upon holders of interim permits places the responsibility on the holder to either have his waste meet the criteria for safe disposal in the ocean or develop an alternative to ocean disposal. While [C.F.R.] Section ) does not place this development of ocean disposal alternatives on holders of special permits, alternatives must be considered upon re-application, and it is quite conceivable that alternatives may have developed during the permit period EPA Responses, supra note 78, at 31. However, an applicant for a special permit is required to describe ocean disposal alternatives currently available and to explain why (s)he thinks such alternatives are inappropriate. 40 C.F.R () (1975) See quote from 1975 EPA Responses in note 118, supra. While it is conceivable that an ocean disposal alternative will be found during the permit period even without the dumper's active search, such an outcome is unlikely "It is our interpretation of the statute that it is the intent of the Congress that, with the exception of the prohibited materials, ocean dumping should not be banned, but should be strictly regulated." 1975 EPA Responses, supra note 78, at The developed criteria are such that "material which meets the criteria will cause no marine environmental damage." Id U.S.C. 1401(b) (Stupp. IV, 1974) [emphasis added].

21 ECOLOGY LAW QUARTERLY [Vol. 5:753 alternatives would violate Congressional policy. Second, the exemption fails to satisfy Congressional concern to minimize all dumping activities, a concern evidenced by the section of the Act that provides for research and "studies for the purpose of determining means of minimizing or ending all dumping of materials within five years of the effective date [October 23, of this Act."' 23 b. Interim Permits Wastes containing quantities of prohibited materials in excess of trace contaminant limitations or amounts of strictly regulated materials exceeding the LPC restrictions. 24 require an interim permit for ocean disposal.1 25 Interim permit applications are evaluated under more stringent criteria 2 ' and approved subject to more restrictive conditions than U.S.C (Supp. IV, 1974) [emphasis added]. Continued Congressional interest in minimizing all ocean dumping is evident from an exchange between Senator Hollings and Mr. Rhett, spokesman for EPA, at the 1975 Oversight Hearings for the Act: SEN. HOLLINGS. If you had to make that choice from your vantage point, would you ever choose the ocean over a land site? I mean, 1 have been listening to this testimony about all the progress in phasing dumping out, and we're starting here and there, and now you act like you're going to start up something that never was. MR. RHETr. Let's say you have no heavy metal contaminants or anything of this nature and no land available for disposal. I'm not sure. Maybe it is better to burn it and pollute the air, but I think that we should evaluate all methods. I am not saying that it should be in the ocean, but, I am saying that I think all methods of disposal should be considered. SEN. HOLLINGS. We looked at all methods of disposal and we looked at oceans.... We made that determination. We are not looking around to find places to dump... SEN. HOLLINGS. You guys had better stay in that one direction because we'll amend the law to make sure you do. MR. RHETT. I think we are, but I do not believe that the act, as such, precludes ocean dumping. It says "regulate". SEN. HOLLINGS. Well, we'll look at that and make sure because we want to go in one direction on this one. We're trying to clean up the oceans. Go right ahead. Hearing on the Marine Protection, Research & Sanctuaries Act of 1972 Before the Subcomm. on Ocean & Atmosphere of the Senate Comm. on Commerce, 94th Cong., 1st Sess., ser. 32, at (1975) [hereinafter cited as 1975 EPA Testimony] Trace contaminant limitations are found in 40 C.F.R (f) (1975). Strictly regulated materials, for which permits may be issued if the LPC restrictions are met, are listed at 40 C.F.R (1975) C.F.R (d) (1975). However, an interim permit will not be granted for dumping wastes from either a new facility or the expansion of an existing facility unless part of an implementation plan has been completed. 40 C.F.R (d)(3) (1975). The part required to be completed is Phase A of 40 C.F.R (1975), discussed in text accompanying notes , infra C.F.R (d)(I) (1975).

22 19761 OCEAN DUMPING REGULATION 773 are applications for special permits. 2 An interim permit applicant must furnish EPA with an environmental impact statement (EIS).' 28 Further, the applicant must conduct a "thorough review" of the need for and alternatives to ocean dumping, including consideration of practicable treatment and alternative manufacturing processes that would eliminate the offending materials.' 2 9 The review must compare costs and benefits, and demonstrate that the need for dumping outweighs the harm it may cause. 13 The applicant also must file an "implementation plan," a set of proposed efforts to develop alternatives to the ocean dumping of its wastes, so as to eliminate the need for a future permit. 131 While EPA considers all this data in determining whether to issue the permit, the regulations do not indicate what weight will be given -to each factor. 3 The maximum duration for an interim permit is one year, but it may expire within that time, depending on when the implementation plan is completed An interim permit cannot be renewed; the permitee may reapply, however, for a new permit."' Issuance of an interim permit depends upon the "development and active implementation" of a plan to obviate the need for such a permit. 35 Under this plan, the permitee must schedule the implementation C.F.R (d)(3) & (1975). See also 40 C.F.R (b) (1975) C.F.R (d)(1) (1975). Applications for interim permits must include an EIS showing the temporary and the permanent impacts of ocean disposal of wastes on both the proposed dumping site and on the various other uses of the oceans. 40 C.F.R (d)(1)(iv) & 227.4, Phase A, at (a)(1)-(3) and (6) (1975). Examples of the uses of oceans for other than dumping are navigation, living resources exploitation, non-living resources exploitation, and scientific study. 40 C.F.R (d)(1)(iv) (1975). The EIS also should discuss problems and objections raised by other government agencies and interested persons. 40 C.F.R , Phase A, at (b)(7) (1975) C.F.R (d)(1) (1975). EPA will consider whether the waste has been given the best treatment feasible and whether the manufacturing process resulting in the waste is essential. Id. The applicant must describe the treatment process and prove its effectiveness by conducting analysis of the wastes subsequent to treatment. 40 C.F.R , Phase A, at (a) (1975). If treatment cannot be effected, the applicant should consider alternative raw materials or manufacturing processes. 40 C.F.R , Phase A, at (b) & (c) (1975). A comparison must be made between the monetary cost and environmental impact of disposal on ocean waters and the cost and impact of alternate means of disposal on other parts of the environment. 40 C.F.R (d)(1)(iii)-(iv) (1975). Alternative disposal methods listed include land fill, deep or shallow well injection, incineration, recycling, and treatment. 40 C.F.R , Phase A, at (a)(4)(i)-(vii) (1975) C.F.R , Phase B, at (b) (1975) C.F.R (d) (2) & , Phase B, at (c) (1975) C.F.R (d)(1) (1975) C.F.R (d) (2) (1975) Id C.F.R (d) (2) & (1975).

23 ECOLOGY LAW QUARTERLY [Vol. 5:753 of approved control processes that either bring its wastes within acceptable limits or provide an alternative to ocean dumping.'" If no acceptable alternative is known, the permitee must schedule and describe a research program to create an alternative.' The regulations stipulate that development and performance of an implementation plan is a prerequisite to issuance of an interim permit for strictly regulated materials exceeding LPC limits.""' The regulations do not state that such a plan is necessary for prohibited materials exceeding trace limitations, but it would seem that a plan is required. Not only is there no reason to regulate "prohibited materials" less stringently than "strictly regulated materials," but the introduction to the regulation section on implementation plans states that the section imposes "a condition on every interim permit."'" The rationale underlying the interim permit program is that ocean disposal of materials exceeding LPC and trace limitations must be allowed until feasible alternatives are found and implemented. 4 ' However, EPA has intimated that alternatives to the dumping of some harmful materials may never prove feasible. Where ocean dumping of such wastes, though damaging to the marine environment, is the solution least damaging to the overall environment, EPA will consider such disposal the only feasible alternative.' 4 ' As the agency charged with protecting the environment, EPA is arguably vested with responsibility for finding the least damaging solution to pollution problems;1 4 2 thus it The implementation plan is divided into "Phase A" and "Phase B." The two phases are not arranged in order so as to require sequential performance. The divisions in both phases are confusing because each phase has two different sets of paragraphs labeled "(a)" and "(b)." 40 C.F.R (1975). Phase B, on its face, applies only to dumping of strictly regulated materials exceeding the LPC limits of C.F.R , Phase B (1975). However, the obvious intent, as construed from other parts of the regulation of interim permits, is that Phase B applies to prohibited materials exceeding the concentration limitations of (f) as well. See text accompanying notes itfra C.F.R (d)(2) & , Phase A, at (d) (1975). The schedule and documentation should discuss: "(1) Engineering plan. (2) Financing approval. (3) Starting date for change. (4) Completion date. (5) Operation starting date." 40 C.F.R , Phase A, at (d)(1)-(5) (1975) C.F.R. 227,40, Phase A, at (e) (1975). The schedule and documentation should discuss: "(1) Approaches. (2) Experimental design. (3) Starting date. (4) Reporting intervals. (5) Proposed completion date. (6) Report of recommendations." 40 C.F.R , Phase A, at (f)(1)-(6) (1975) C.F.R , Phase B, at (c) (1975) C.F.R (1975) (emphasis added) See 1975 EPA Responses, supra note 78, at 30 (answer to question 6(a)) See 1975 EPA Testimony, supra note 122, at & U.S.C (Supp. IV, 1974). For discussion that the National Environmental Policy Act (NEPA), 42 U.S.C et seq., requires federal agencies to find alternatives to federal projects that would

24 1976] OCEAN DUMPING REGULATION should choose, as a matter of public policy, the waste disposal alternative least damaging to the environment. Nevertheless, it is not clear that the Act grants EPA discretion to allow ocean dumping of materials that clearly endanger the marine environment, even where such dumping is the least damaging alternative.' 43 Regardless of whether EPA has been given this discretion, EPA's primary emphasis should be to put pressure on producers of such wastes to obviate the need for disposal altogether.' 44 Even though the interim permit program pressures industrial producers to abate their need to dispose of wastes exceeding trace and LPC limits, 14 sewage sludge, which is the waste substance most often dumped under interim permits, 146 is not subject to the implementation plan reminimez adverse environmental impacts, see R. Jordan, Alternatives Under NEPA: Toward an Accommodation, 3 ECOLOGY L.Q. 705, (1973). For discussion of the applicability of NEPA to EPA, see F. ANDERSON, NEPA IN THE COURTs (1973). For the view that EPA, as national coordinator of anti-pollution activities, should consider environmental trade-offs in implementing specific environmental statutes, see Comment, implementation of the Clean Air Act: Should NEPA Apply to the Environmental Protection Agency?, 3 ECOLoGY L.Q. 597, (1973) The Act requires that EPA consider "[appropriate locations and methods of disposal or recycling, including land-based alternatives...." 33 U.S.C. 1412(a)(G) (Supp. IV, 1974). However, Senator Hollings has expressed the view that the Act does not give EPA discretion to choose the ocean over other locations for disposal of materials regulated under interim permits. See 1975 EPA Testimony, supra note 122, at Alternatives to disposal include recycling and alteration of production processes so as to eliminate harmful materials from waste or to bring those materials within trace and LPC limitations of 40 C.F.R (f) & (1975). For discussion of alternatives to disposal of sewage sludge, see note 148 infra The regulation for Phase B of the implementation plan provides: For industrial sources, any such plan shall provide for: (a) By not later than July 1, 1977, the application of the best practicable technology currently available for the removal of such materials, as determined by the Administrator; (b) By not later than July 1, 1983, the application of the best available technology economically available for the removal of such materials, as determined by the Administrator, which will result in reasonable further progress toward the goal of achieving compliance with the requirements of this part. 40 C.F.R , at Phase B (1975) Types and amounts of wastes dumped in 1973 and 1974 were as follows: OCEAN DISPOSAL: TYPES AND AMOUNTS, AND Atlantic Gulf Pacific Total Waste type Industrial waste 4,344,000 3,997, ,294,000 5, Sewage sludge ,429, ,429,400 Construction and demolition debris. 2,290,000 1, ,000 1, Soi waste 0 15 r 0 2W I0N 240 Explosives Total ,000 10, , , ,126,200 11,995, source--epa regional offices, unpublished reports, 1974 (12 mos of dumping activity) source-epa regional offices, unpublished reports, 1973 (8 mos of dumping activity-may to December 1973 under permits issued by ocean disposal program extrapolated for 12 mos to provide en annual rate) EPA Testimony, supra note 122, at 17.

25 ECOLOGY LAW QUARTERLY [Vol. 5:753 quirement. Unlike processes which produce other types of industrial wastes, processes which create sewage sludge cannot be sufficiently modified to eliminate production of this waste substance. 4 ' However, there are many economically feasible recycling alternatives for sewage sludge, including use for (1) reclamation of surface-mined lands; (2) agricultural fertilizer after reclamation of heavy metals, which will be in marketable form; and (3) construction land-fill after minor processing. 4 Inclusion of sewage sludge in the implementation plan requirement would pressure municipalities to find recycling alternatives for these wastes. Such pressure is urgently needed; since passage of the Act, the amount of sewage sludge dumped has increased, while that of industrial wastes has decreased." Furthermore, municipalities increasingly will prefer ocean dumping to land disposal as more thorough treatment of sewage waters produces progressively toxic wastes. 50 Emphasizing recycling alternatives simultaneously would relieve pressure for both land and ocean disposal.' 151 All sewage wastes that are dumped come from the New York and Philadelphia metropolitan areas and are subject to regulations under the interim permit program. See id. and Letter from R.E. Train to Senator E.F. Hollings, July 8, 1975, Hearing on the Marine Protection, Research & Sanctuaries Act of 1972 Before the Subcomm. on Oceans & Atmosphere of the Senate Comm. on Commerce, 94th Cong., 1st Sess., ser. 32, at 70 (1975) [hereinafter cited as 1975 EPA Letter] As long as there are urban areas with sewer systems, there will be sewer waste waters. Moreover, lessening the amount of sewage sludge derived from treatment of sewer waste waters would inevitably leave more harmful materials in the waste waters. Disposal of large quantities of toxic waters, or discharge of such waters in coastal or estuarine waters, would pose even greater environmental problems than disposal of concentrated sewage sludge See K. Kamlet, Ocean Dumping: Philadelphia's Story, 9 ENV. Sea. & TECH (1975) (hereinafter cited as Kamlet); 1975 EPA Letter, supra note 146, at 70. Acceptable methods of treatment, utilization and disposal of municipal sewage sludge are available for use today. The principal methods most widely used include: (1) application to the land (60%); (2) incineration (25%); and (3) ocean dumping (15%). In terms of volume, there should be no major problem in absorbing the 15 percent of the Nation's sludge currently being dumped in the ocean. Letter from R.M. White (NOAA) to Sen. W.G. Magnuson, April 18, 1975, Hearing on the Marine Protection, Research & Sanctuaries Act of 1972 Before the Su.conim. on Oceans & A tmosphere of the Senate Comm. on Commerce, 94th Cong., 1st Sess., ser. 32, at (1975) See 1974 EPA Testimony, supra note 78, at 17. See also 1975 EPA Letter, supra note See 1974 EPA Testimony, supra note 78, at Some recycling alternatives, such as reclamation of strip-mined land or use ot wastes as agricultural fertilizer, may appear to be similar to land disposal. However, recycling emphasizes finding environmentally constructive uses for the wastes, rather than merely searching for a place to hide them. Additionally, recycling necessarily entails some processing to make the materials suitable for re-use. See generally, Kamlet, supra note 148.

26 1976] OCEAN DUMPING REGULATION 3. Strictly Regulated Materials Wastes containing "strictly regulated" materials' 52 can be dumped only if certain restrictive conditions, including the performance of a bioassay, 153 are met. These conditions depend on both the degree to which these materials remain concentrated after dumping and the effect of such concentration on marine organisms. If a dumper shows that the concentration of materials in the "mixing zone" 1 ' 4 ' will be within LPC, the materials may be dumped under a special permit." 5 If, however, the materials exceed LPC, then they may be dumped only under the more restrictive conditions of an interim permit." 56 That strictly regulated materials exceeding LPC can be dumped only under an interim permit is not a significant limitation. The 152. Wastes containing the following kinds of materials are strictly regulated under EPA regulations: (1) The elements, ions, and compounds of: Arsenic. Vanadium. Lead. Beryllium. Copper. Chromium. Zinc. Nickel. Selenium. (2) Organosilicon compounds and compounds which may form such substances in the marine environment. (3) Inorganic processing wastes, including cyanides, fluorides, titanium dioxide wastes, and chlorine. (4) Petrochemicals, organic chemicals, and organic processing wastes, including, but not limited to: Aliphatic solvents. Amines. Phenols. Polycyclic Plastic intermedi- aromatics. ates and by- Phthalate esters. products. Detergents. Plastics. (5) Biocides not prohibited elsewhere, including, but not limited to: Organophosphorus Herbicides. compounds. Insecticides. Carbamate compounds. (6) Oxygen-consuming and/or biodegradable organic matter. (7) Radioactive wastes not otherwise prohibited. As a general policy, the containment of radioactive materials ( ) is indicated rather than their direct dispersion and dilution in ocean waters. (8) Materials on any list of toxic pollutants published under section 307 (a) of P.L , and materials designated as hazardous substances under section 311(b)(2)(A) of P.L , unless more strictly regulated under (9) Materials that are immiscible with seawater, such as gasoline, carbon disulfide, toluene. 40 C.F.R (b) (1975) The term bioassay refers to laboratory evaluation of the tolerance levels of marine organisms to various toxic substances. WARREN, supra note 6, at "Mixing zone" is defined infra at note C.F.R (a) (1975) C.F.R (d) (1975).

27 ECOLOGY LAW QUARTERLY [Vol. 5:753 regulations define "mixing zone" in such a way that a dumper can lower the concentration of toxic materials in the zone simply by increasing his vessel's speed; thus, a dumper can meet the special permit requirements by such manipulation. 157 Additionally, even a concentration ratio within LPC limitations does not preclude harm to marine life. Because of the bio-concentration abilities of many marine organisms, 158 the fact that toxic materials are diluted when dumped does not eliminate the possibility of unreasonable degradation of the marine environment Less Strictly Regulated Materials: General Permits Liquid wastes containing no absolutely prohibited, prohibited, or strictly regulated materials are considered wastes of a "non-toxic" nature. 6 ' Such wastes may be dumped without prior performance of a bioassay on proof of their physical and chemical nature. 1 "' Solid wastes may be classified as non-toxic even if they contain prohibited or strictly regulated materials, so long as such materials are present either in a completely insoluble form or in a form not soluble beyond trace contaminant and LPC limits.' 6 2 It is puzzling that such soluble solid wastes could be considered non-toxic without regard to the rapidity with which the waste dissolves and releases amounts of prohibited or strictly regulated materials when liquid wastes containing the same materials in -the same amounts would be considered toxic.' In terms of toxic effects to marine organisms, there would seem to be little dif The mixing zone is defined as that area of the ocean water wherein materials dumped will mix into a uniform concentration within four hours after the dumping. 40 C.F.R (a) (1975). Since the ocean area where the materials will be dumped depends mostly upon the speed of the vessel, both the mixing zone and the LPC, which is defined in terms of the mixing zone in 40 C.F.R (a) (1975), can be manipulated simply by varying vessel speeds. For a critique of this loophole to regulation of these materials, see 1974 NWF Petition to EPA, supra note 109, at See text accompanying notes 17-18, supra For discussion of harmful effects of bioconcentration of toxic materials by marine organisms, see text accompanying notes 19-21, supra C.F.R (1975) C.F.R (1975). Presumably, proving the chemical nature of such wastes would largely entail showing that prohibited or strictly regulated materials are not present C.F.R (1975) C.F.R (1975) provides that solid wastes containing prohibited or strictly regulated materials "in forms insoluble or soluble but not exceeding... Itrace contaminant and LPC limits] may also be regarded as non-toxic in the marine environment." However, 40 CF.R (e) (1975) provides that strictly regulated materials, and presumably also prohibited materials, are considered to have "known or potential adverse effects on the aquatic ecosystem or human health and welfare." Thus, it appears that prohibited and strictly regulated materials that are within trace and LPC limits are considered as toxic only when they are in liquid form before dumping,

28 1976] OCEAN DUMPING REGULATION ference between a material that is in a liquid state when dumped and one that quickly changes from a solid to a liquid state when submerged in ocean waters. Bioassays are not expressly required by the regulations for dumping non-toxic materials."" However, solid wastes containing strictly regulated materials are considered non-toxic only if such materials are not soluble beyond LPC restrictions. 65 Since LPC, by definition, require the performance of a bioassay, 00 it would seem that bioassays should be conducted on soluble solid wastes containing strictly regulated materials. Solid wastes composed of "natural minerals or materials compatible with the ocean environment"' 67 are treated less stringently than other non-toxic wastes.1 68 Permits for dumping these wastes "may be generally approved." 169 However, in addition to meeting LPC and trace restrictions, these natural or compatible solid wastes must settle rapidly or otherwise disperse without damage to ocean biota." Ocean disposal of non-toxic wastes requires a special permit, 17 ' unless EPA has authorized dumping of those specific wastes with only a general permit. 7 ' General permits may be issued for materials which EPA determines will have "minimal adverse environmental impact." 17 3 In contrast to permits issued to specific applicants, general permits are published in the Federal Register and allow dumping of specified materials by specified persons without request. 74 EPA regulations state that general permits are issued for non-toxic wastes that are dumped occasionally and in small quantities,' 175 presum C.F.R (1975) Id C.F.R (1975) C.F.R (1975). Unfortunately the regulation gives no examples of such natural or compatible materials. One can only speculate as to whether excavated landfill, dead seaweed or uncontaminated salts were the types of materials contemplated for this classification. In any event, it would seem that such materials would rarely be the subject of proposed ocean dumping since land disposal would probably be more economical and presumably of equal, if not less, environmental impact Compare id. with 40 C.F.R (1975) C.F.R (1975) Id C.F.R (b) (1975) C.F.R (a)-(b) (1975) U.S.C. 1414(c) (Supp. IV, 1974) Fed. Reg (July 17, 1975). To date, EPA has published two general permits. 40 C.F.R & (1975). One allows ocean burial of human remains in waters at least three miles from land. 40 C.F.R (1975). The other, which permits the sinking of target vessels, is discussed in text accompanying notes , infra C.F.R (a) (1975). The regulation itself lists only "galley wastes from ships" as an example of materials suitable for general permit treatment. 40 C.F.R.

29 ECOLOGY LAW QUARTERLY [Vol. 5:753 ably because their environmental impact would be minimal. However, EPA's issuance of the general permit which allows the United States Navy to sink "target vessels"' 17 demonstrates that the general permit category may provide a "loophole" in the regulation of toxic wastes. The permit is conditioned upon removal of toxic materials, including fuel and other petroleum products, from the vessel "to the maximum extent 177 practicable.' The Navy is not required to notify EPA as to the types or quantity of toxic materials left in a sunken vessel.' Because of this permissive permit condition and lack of a notice requirement, EPA has essentially granted the Navy unfettered discretion to sink target vessels containing toxic materials. B. Dump Sites The Act authorizes EPA to limit all dumping to designated sites.' 79 To date, EPA has approved approximately 120 disposal sites on an interim basis; more than 100 of these are used only for disposal of dredged materials. 180 The selected areas had been used previously as dump sites, and were approved so that adverse effects on the marine environment would be confined to regions already contaminated." 8 ' These sites will continue to be approved only on an interim basis until final ecological determinations are made.' 82 The Act provides that EPA is to select dump sites beyond the edge of the Continental Shelf whenever feasible.' Due to the environmental problems such selection would pose, including greater sensitivity of organisms and slower decomposition of toxic wastes in deep-sea wa- Id. Since the promulgation of that regulation, however, EPA has admitted that the Act does not confer jurisdiction for regulation of galley wastes. See 1975 EPA Responses, supra note 78, at C.F.R. 229,2 (1975). The Navy is permitted to sink vessels for the purpose of testing ordnance, provided that such sinking occurs in waters deeper than 6,000 feet and at least 50 miles from land. 40 C.F.R (a)(3) (1975) C.F.R (a) (4) (1975) The Navy must file an annual report, but the only information required is the name and tonnage of each vessel, and the location and date of each sinking. 40 C.F.R (b) (1975) The Act authorizes EPA to designate "recommended sites" for dumping. 33 U.S.C. 1412(c) (Supp. IV, 1974). It also allows EPA to specify in a permit the location where dumping will be permitted. 33 U.S.C. 1414(b) (Supp. IV, 1974). Accordingly, EPA may limit all dumping to designated sites by specifying only designated sites as the locations where permitted dumping may occur EPA Responses, supra note 78, at Id. at 30; 1974 EPA Testimony, supra note 78, at EPA Testimony, supra note 122, at 16; 1975 EPA Responses, supra note 78, at 30. An environmental impact statement will be prepared for each location that is finally approved as a dump site. Id U.S.C. 1412(a) (I)(Supp. IV, 1974).

30 1976] OCEAN DUMPING REGULATION ters, 8 4 EPA largely has ignored this directive.' 5 Even critics of the site designation program generally agree that "off-the-shelf" sites may never prove feasible In light of the statutory directive, however, EPA should at least conduct intensive research on experimental deep-sea sites to determine if off-the-shelf sites should be used. 8 7 The Act also empowers EPA to designate regions in which the disposal of certain materials will be prohibited in order to protect "critical areas." ' 18 Neither the Act nor EPA regulations define "critical areas." Drafters of the Act anticipated that the size and number of such areas would be small.' 9 However, no critical areas have yet been designated.' IV THE CORPS PERMIT PROGRAM The Act authorizes the Corps to review applications for permits to dump dreged spoils, under criteria established by EPA. 1 '' A. EPA Criteria for Dredged Materials EPA regulations provide a separate set of criteria for Corps evaluation of permits for dumping dredged materials.' 92 EPA's criteria appear to treat dredged materials differently from other materials only because they are dredged,' without regard for the environmental effects of 184. See 1974 NWF Testimony, supra note 13, at See 1975 EPA Testimony, supra note 122, at 23; 1975 EPA Responses, supra note 78, at See 1974 NWF Statement, supra note 13, at Comments of the National Wildlife Federation, Hearings on Oversight for the Ocean Dumping Act Before the Subcomm. on Fisheries & Wildlife Conservation & the Environment and the Subcomm. on Oceanography of the House Comm. on Merchant Marine and Fisheries, 93d Cong., 2d Sess., ser. 38, at 137 (1974) U.S.C. 1412(c) (Supp. IV, 1974) HOUSE-SENATE CONF. REP. No. 1546, supra note See generally 40 C.F.R. Part 227 (1975) U.S.C. 1413(a) & (b) (Supp. IV, 1974) C.F.R et seq. (1975). Dredged material is defined as bottom sediments excavated from the navigable waters of the United States. 40 C.F.R (a) (1975) EPA offers little support or argument for the claim that "practical implementation of the criteria of and [i.e., the EPA criteria for all other materialsl" requires a separate set of criteria for dredged materials. 40 C.F.R (b) (1975). The only rationale offered is that "the natural processes" of channel sediments that are dredged "may alter the [sediments'] toxic or other pollutional properties.. " Id. The reason for separate criteria for dredged materials can only be speculated upon. Perhaps EPA was concerned with possible impediment to dredging operations necessary for commerce and navigation should disposal of dredged materials be regulated too stringently. However, the Act clearly mandates EPA to set criteria according to the

31 ECOLOGY LAW QUARTERLY [Vol. 5:753 their disposal. For example, disposal of industrial wastes containing more than a certain concentration of mercury may be prohibited altogether. 94 However, dredged spoils containing the same quantity of mercury may be dumped so long as disposal conditions are set to minimize their harm."' 9 Dredged materials are divided into subclasses: "polluted" and "unpolluted."'i" Despite the fact that there are separate provisions for '97 the dumping of each subclass, polluted materials are not more stringently regulated. The regulations concerning conditions and sites for the dumping of polluted sediments are more detailed and appear to be more restrictive than those for unpolluted sediments; but, in reality, they are largely permissive."' The only effective restriction on dumping environmental guidelines set forth in the statute. 33 U.S.C. 1412(a)(A)-(F) (Supp. IV, 1974). The Act explicitly provides that environmental guidelines are to be sacrificed only when the Corps finds, in a specific case, that there is no economically feasible alternative to ocean disposal. 33 U.S.C. 1413(d) (Supp. IV, 1974) C.F.R (f)(1) (1975) See quote in note 199 infra Such materials are classified as unpolluted if they consist essentially of sand, gravel, or other natural sediments. The regulation does not explain how it is to be determined that the material is "composed essentially of" natural sediments, or what percentage of the material must be natural sediments for it to qualify as unpolluted. The regulation does state, however, that such material generally is found in areas of "normally high wave energy," such as open coastlines. 40 C.F.R (a) (1975). Dredged material may be shown to be unpolluted by a simple laboratory test demonstrating that "major constituents" of the material to be dumped are no more than one and a half times the concentration of those same constituents present in the proposed disposal site. The test consists in "the vigorous 30-minute shaking of one part bottom sediment with four parts water from the proposed disposal site followed by one hour of letting the mixture settle and appropriate filtration or centrifugation." 40 C.F.R (c) (1975). "'Major constituents' are those water quality parameters deemed critical for the proposed dredging and disposal sites taking into account known point or areal source discharges in the area [sic], and the possible presence in their wastes of the materials in and [i.e., prohibited and strictly regulated materials]." Id. Dredged spoils also will be considered unpolluted if the dredge site has adequate water quality and healthy biota. 40 C.F.R (b) (1975). If the dredged material cannot be classified as unpolluted by any of the ways described supra, then "laboratory analysis" is required. Unfortunately, the regulation does not explain what such "laboratory analysis" entails. 40 C.F.R (1975). If dredged spoils cannot be shown to be unpolluted, they are classified as polluted. 40 C.F.R (1975) Dumping of unpolluted dredged sediments is regulated by 40 C.F.R (1975). Dumping of polluted dredged sediments is regulated by 40 C.F.R (1975) The regulations for polluted dredged materials provide: When material has been found to be polluted in accordance with (c), bioassay tests may be performed when it can be shown that the results of such tests can be used to assist in setting disposal conditions. To minimize the possibility of any such harmful effects, disposal conditions must be carefully set, with particular attention being given to the following factors: (a) Disposal site selection. (1) Disposal sites should be areas where benthic life which might be damaged by the dumping is minimal.

32 1976] OCEAN DUMPING REGULATION polluted sediments is that such dumping must "produce no unacceptably adverse impact" on, municipal water supplies, regions inhabited by specified marine organisms,' 9 or recreation areas. 200 However, since not even unpolluted dredged materials can be dumped under such circumstances, 20 1 there is little practical difference between how the two are treated. Moreover, allowing dumping of dredged materials, absent "unac- (2) The disposal site must be located such that disposal operations will cause no unacceptable adverse effects to known nursery or productive fishing areas. Where prevailing currents exist, the currents should be such that any suspended or dissolved matters would not be carried in to known nursery or productive fishing areas or populated or protected shoreline areas. (3) Disposal sites should be selected whose physical environmental characteristics are most amenable to the type of dispersion desired. (b) Dumping conditions. (1) Times of dumping should be chosen, where possible, to avoid interference with the seasonal reproductive and migratory cycles of aquatic life in the disposal area. (2) If the type of material involved and the environmental characteristics of the disposal site should make either maximum or minimum dispersion desirable, the discharge from and movement of the vessel during dumping should be in such a manner as to obtain the desired result to the fullest extent feasible. 40 C.F.R (1975). The provision concerning disposal site selection amounts to no more than a recommendation, and does not prevent the Corps from dumping polluted sediments in sites not conforming to the criteria; the Act itself requires the Corps to use, only "to the extent feasible,... [EPA] recommended sites...." 33 U.S.C. 1413(b) (Supp. IV, 1974). As to the provision concerning dumping conditions, despite usage of the word "should" in each subsection, careful reading reveals that the provision is permissive insofar as it only requires dumping at optimum times "where possible," and "in such manner as to obtain the desired result." 40 C.F.R (b) (1975). The conditions placed upon dumping polluted sediments, to the extent that they are mandatory are still no more stringent than conditions placed upon the ocean disposal of unpolluted sediments. Unpolluted sediments "may be dumped at any site which has been approved for the dumping of settleable solid wastes of natural origin." 40 C.F.R (1975). This regulation presumably refers to sites approved for the "[s]olid wastes of natural minerals" specified in 40 C.F.R (1975), which requires that such solid wastes be dumped without damage to marine biota, with controlled dispersion to prevent environmental damage. 40 C.F.R (1975). These conditions on dumping unpolluted sediments are as restrictive as the conditions placed upon dumping polluted sediments in 40 C.F.R (b)(1)-(2) (1975). Even so, the Corps is dissatsified with the need to establish that sediments are unpolluted. See Statement of Brig. Gen. K.E. McIntyre, Hearing on the Marine Protection, Research & Sanctuaries Act of 1972 Before the Subcomm. on Oceans & Atmosphere of the Senate Comm. on Commerce, 94th Cong., 1st Sess., ser. 32, at 6 (1975) [hereinafter cited as 1975 Corps Testimony] These areas are "shellfish beds, wildlife [areas, and] fisheries (including spawning and breeding areas).. " 40 C.F.R (c) (1975). 20D. 40 C.F.R (2) & (3)(b), (c) (1975) C.F.R (c), which is applicable to all dredged materials, provides: The dumping of dredged material in the ocean will be permitted... unless there is evidence that the proposed disposal will have an unacceptable adverse impact on municipal water supplies, shellfish beds, wildlife, fisheries (including spawning and breeding areas), or recreational areas. 40 C.F.R (c) (1975).

33 ECOLOGY LAW QUARTERLY (Vol. 5:753 ceptable adverse impact" on municipal water supplies, shellfish beds, wildlife and fisheries areas, or recreation areas, 202 violates the statutory guidelines by which EPA is to establish criteria for permit evaluation The Act requires EPA to determine that permissible dumping "will not unreasonably degrade or endanger human health, welfare or amenities, or the marine environment, ecological systems, or economic potentialities." 204 However, the above regulations will not prevent disposal of dredged materials which might unreasonably degrade human health, welfare, and amentities in respects other than municipal water supplies and recreation areas; nor will they bar such dumping which might unreasonably degrade areas of the marine environment other than shellfish beds and wildlife and fisheries areas. 2 1"1 Finally, these criteria effectively bypass the statutory method for resolving disputes between EPA and the Corps. The Act provides that the Corps cannot issue a permit for disposal of dredged material where EPA disagrees with the Corps' determination that dumping would comply with the criteria. 20 If there is "no economically feasible" alternative, the Corps may seek an EPA waiver. 2 " 7 EPA then will grant a waiver, unless it determines that dumping would have "an unacceptable adverse impact on municipal water supplies, shellfish beds, wildlife, fisheries... or recreation areas. ' 2 ' EPA criteria simply recite this statutory standard. The criteria are violated, and a dispute arises, only in those instances where EPA can refuse a waiver. Thus, the intermediate steps of the statutory method are unnecessary. B. Corps Permits and Regulations Although it must use EPA criteria to evaluate the environmental effects of proposed dumping, the Corps may independently determine the need for dumping, the disposal alternatives, and the dump site locations The Act provides that these determinations are to be C.F.R (c) & (1975). The marine life areas specified are "shellfish beds, wildlife [areas, andl fisheries (including spawning and breeding areas)... Id The Act requires EPA to consider the effects of dumping on plankton; marine ecosystem diversity, productivity and stability; and species and community population dynamics. 33 U.S.C. 1412(a) & 1412(c)-(d) (Supp. IV, 1974). The criteria for dredged materials, on the other hand, are restricted to minimal regulation of municipal water supplies, shellfish beds, and wildlife, fisheries and recreation areas. 40 C.F.R (c) (1975) U.S.C. 1412(a) (Supp. IV, 1974) C.F.R (c) (1975) U.S.C. 1413(c) (Supp. IV, 1974) U.S.C. 1413(d) (Supp. IV, 1974) Id U.S.C. 1413(b) (Supp. IV, 1974). In selecting sites for dumping

34 19761 OCEAN DUMPING REGULATION based on the navigational, economic, and commercial aspects of the proposed dredging and dumping operation. 210 The Corps has issued regulations which list factors for permit evaluation. 211 But these factors merely echo the broad directives outlined in the Act; no additional information is offered. No guidelines are established for applying EPA criteria to the effects of the proposed dumping, or for making an independent determination as to the need for, alternatives to, and appropriate locations for the dumping.212 As permitted by the Act, Corps regulations provide that no permit is needed for dumping materials from dredging operations performed by or for the Corps. 213 Such dumping must comply with the same criteria and procedures governing disposal of dredged materials from non-corps projects. 214 However, as is the case with its permit program, the regulation that establishes factors to limit the Corps' own dumping is a simple repetition of the broad statutory directive. 215 Corps administration of both the Act and its own regulations suffers from serious problems, perhaps due to the conflicts it admittedly has experienced in being both the primary dumper of dredged wastes and the regulator of dredged waste dumping. 21 The issuance and implementation of its regulations was long delayed. 217 Corps district levels do not coordinate their implementation. 218 Also, although data is scarce due to its decentralized administration," 9 the Corps often appears to ignore its own regulations; for example, its public notices of dredged materials, the Corps is to utilize EPA recommended sites "to the extent feasible." Id Id C.F.R et seq. (1975). Paragraphs, sentences, and phrases specifically dealing with regulation of ocean dumping of dredged materials have been grafted onto the Corps' extensive regulations governing its permit programs for all structures and works in the navigable waters of the United States. For an example of the results of such grafting, see 33 C.F.R (h)(2)(ii) (1975) U.S.C. 1413(b) (Supp. IV, 1974); 33 C.F.R et seq. (1975) U.S.C. 1413(e) (Supp. IV, 1974); 33 C.F.R (b)(2) (1975). The regulations expressly exclude work done for another federal agency by the Corps on a reimbursement basis, but include work done by private agencies for the Corps. 33 C.F.R (d) (5) (1975) U.S.C (e) (Supp. IV, 1974); 33 C.F.R (b)(2) (1975) C.F.R (e)( 2 ) (1975); 33 U.S.C. 1413(b) & (e) (Supp. IV, 1974) See 1975 Corps Testimony, supra note 198, at 7. Another factor in the Corps' lack of administrative zeal may be its conviction that ocean disposal of dredged materials is not harmful, and perhaps is even beneficial, to the marine environment. Id. at See Hughes Testimony, supra note 11, at 81; 1974 NWF Statement, supra note 13, at See Hughes Testimony, supra note 11, at , Id.

35 ECOLOGY LAW QUARTERLY [Vol. 5:753 dumping activities frequently contain less than half the information required. 22 Thus, the Corps' enforcement of the Act appears halfhearted. 22 ' V PERMIT PROCEDURES AND ENFORCEMENT A. Public Notice and Hearings Several provisions of the Act ensure public input into the permit decision-making process. Both EPA and the Corps must give public "notice and an opportunity for public hearings" prior to the issuance of a permit. 222 Both agencies also must make available to the public any information furnished by applicants and permitees, 22s and the agency's final decision on an application or permit and the reasons for that decision. 224 EPA regulations require publication of a notice summarizing the information contained in every completed application, including EPA's tentative determination as to whether or not a permit will be issued For discussion of the failure by Corps districts to adhere to Corps regulatory requirements as to when and what kind of notice must be given, see note 230 and accompanying text infra The NWF has charged that the Corps' administration of the Act has resulted in perpetuation, rather than regulation, of prior ocean dumping practices NWF Statement, supra note 13, at U.S.C. 1412(a) & 1413(a) (Supp. IV, 1974) U.S.C. 1414(f) (Supp. IV, 1974). For information required by EPA for special permit applications, see text accompanying note 115 supra; and for interim permit applications, see text accompanying notes and supra. Although anyone requesting the grant of a general permit must furnish the same information as one applying for a special permit, a general permit may be issued upon EPA's own initiative by publication in the Federal Register, in which case neither an application nor other information need be furnished prior to dumping. 40 C.F.R (a) (1975). For information required for all Corps dumping permit applications, see 33 C.F.R (h)(1) & (2)(ii) (1975). EPA processing fees are $1000 for a permit to dump in a designated site, $3000 for a permit to dump in a non-designated site, and $700 for a renewal of a permit. 40 C.F.R (1975). The Corps has set the fee for an application to dump less than 2500 cubic yards of dredged material at $10; otherwise, the charge is $ CF.R (h)(2)(ii) (1975). Additionally, if an EIS is needed, the applicant must either reimburse the Corps or employ a third party approved by the Corps to gather the information required for preparation of an EIS by the Corps. 33 C.F.R (h)(2)(ii) (1975) U.S.C. 1414(f) (Supp. IV, 1975). See H.R. REP. No. 361, supra note 10, at Public notice will be given whenever a completed application has been filed and shall include a summary of information supplied in the application. 40 C.F.R (a) (1975). Such notice shall be published within the area of the port from

36 19761 OCEAN DUMPING REGULATION However, no provision is made for public notice of the final determination; EPA simply must make the determination "available" for public inspection This inconsistency is puzzling. Corps procedures require public notice before commencement of a Corps project involving disposal of dredge spoils, or upon application for a private dumping permit. 2 " However, Corps regulations allow publication of ocean dumping notices together with notices concerning other Corps projects and other permit applications, when such operations are in the same Corps district as the proposed dumping. 228 Thus, information on dumping activities often is buried within a mass of data about other Corps and private operations. 229 More exasperating is the fact that notices often do not contain all the requisite information, and sometimes are not sent to those requesting them, in violation of the which the material would be transported for dumping and in the city from which the permit will issue. 40 C.F.R (b)(1) (1975). Within thirty days after receipt of an application for a permit, EPA will make a tentative determination as to whether a permit will be issued or denied. 40 C.F.R (1975). If the preliminary decision is to issue a permit, tentative determinations as to the conditions attached also will be announced. 40 C.F.R (a)-(c) (1975). Unless a hearing is convened, EPA will issue a final decision within 180 days after receipt of a completed application. 40 C.F.R (1975). A copy of the notice will be mailed to the state water pollution control agency and to other interested persons and agencies. 40 C.F.R (b)(2) & (c) (1975). Notice to such state agency is required only where dumping will affect the territorial sea adjoining the state. Certification of compliance with FWPCA by the state agency is required if the dump site is within the territorial sea or will affect water quality in the territorial sea. 40 C.F.R (c) (1975). Notices must be mailed to persons and agencies who have requested them, to the Corps for any comments and objections regarding possible obstruction of navigation, to the Coast Guard for appropriate enforcement activities, and to various government agencies concerned with fish and wildlife conservation. 40 C.F.R (b)(2) & 222.3(d)-(f) (1975) The author has been unable to find any notice requirement for final determinations either in the regulations detailing action to be taken on applications and notices, 40 C.F.R. Part 222 (1975), or in any other EPA regulations dealing with ocean dumping, 40 C.F.R. Part 220 (1975). 33 U.S.C. 1414(f) merely requires that EPA's final determinations and the reasons therefor be made available to the public, not that public notice be given. 33 U.S.C. 1414(f) (Supp. IV, 1974). See H.R. RaP. No. 361, 92d Cong., 1st Sess. 21 (1971); S. REP. No. 451, 92d Cong., 1st Sess. 22 (1971). 33 U.S.C. 1412(a) requires that notice be given prior to issuance of a permit by EPA, but this requirement appears satisfied by providing notice that an application is under consideration and does not require notice of the final determination. See H.R. REp. No. 361, supra at 18; S. REP. No. 451, supra at C.F.R (f)(1)(i) & (i)(1)(ii) (1975) C.F.R (f)(2) (1975) See NWF Criticisms of Corps of Engineers Public Notices Relating to Ocean Dumping Permit Applications, Hearings on Oversight for the Ocean Dumping Act Before the Subcomm. on Fisheries & Wildlife Conservation & the Environment and the Subcomm. on Oceanography of the House Comm. on Merchant Marine & Fisheries, 93d Cong., 2d Sess., ser. 35, at (1974) [hereinafter cited as 1974 NWF Criticisms of Corps Notices].

37 ECOLOGY LAW QUARTERLY [Vol. 5:753 Corps' own requirements. 230 In short, while Corps regulations require consideration of responses to public notices in the evaluation process,"' these deficiencies preclude effective public response. Both EPA and Corps regulations provide for public hearings, either at the agency's discretion or upon request. 232 EPA and Corps provisions differ, however, as to when a request will be granted. EPA regulations provide for a hearing whenever a request "presents bona fide issues amenable to resolution at a public hearing." ' 3 The absence of such issues is presumably a basis for EPA to rule on an application without a hearing. Since the regulations offer no criteria for determining what issues are incapable of resolution at public meetings, it is unclear when EPA will deny a request. Corps regulations, on the other hand, provide that requests for public hearings will be granted when made by "persons having a demonstrated interest which may be affected" by the dumping. 2 4 But the regulations do not explain what kind of interest is required. Arguably, an individual or organizational desire to prevent ocean pollution may be sufficient. However, wording of the provision, especially when compared to EPA's broad provision for hearings on the bona fide request of "[any person," suggests that a personal or economic interest may be required. 2 s Notices should indicate the nature and frequency of disposal operations and the locations of disposal sites. 33 C.F.R (i)(1) & (j)(1), (g)(1) (1975). NWF has charged that the Corps notices contain less information than what is required by the Corps' own regulations. See 1974 NWF Criticisms of Corps Notices, supra note 229, at See also 1974 NWF Statement, supra note 13, at 90. Corps regulations require the district engineer to send copies to "all parties who have specifically requested copies of public notices." 33 C.FR (i)(1)(ii) & (f)(1)(i) (1975). Nevertheless, NWF was unable to procure any notices of Corps' dumping projects from the many districts it solicited, although it did receive some notices of permits for non-corps projects NWF Criticisms of Corps Notices, supra note 229, at C.F.R. H (i)(1)(iii) & (f)(1)(ii) (1975). With Corps projects, the time allowed for receipt of responses is usually 30 days from notice mailing date, but could be as little as 15 days at the discretion of the Corps. 33 C.F.R (j)(1)(viii) & (g)(1)(xi) (1975) C.F.R (a)-(b) (1975); 33 C.F.R (i)(1)(v) & (f)(1)(iv) (1975). Request for an EPA hearing must be written, must state objections and other issues to be considered at a hearing, and must be filed within 30 days of the public notice. 40 C.F.R (a) (1975). If the request does not comply with these requirements, EPA may rule on the permit application without a hearing. 40 C.F.R (c) (1975) C.F.R (b)-(c) (1975). The hearing will be held no sooner than 30 days subsequent to receipt of the request and, where possible, in the state where notice of the permit application was first given. 40 C.F.R (1975) C.F.R (i)(1)(v) & (f)(1)(iv) (1975) Id.; 40 C.F.R (a) (1975).

38 1976] OCEAN DUMPING REGULATION B. Permit Reevaluation, Modification, and Suspension The Act does not set a maximum expiration date for permits, but it does require that they be reviewed periodically. 236 Both EPA and Corps regulations recite that most permits shall have definite expiration dates Neither set of regulations explicitly provides for periodic reevaluation of permits, although the existence of procedures for such review can be inferred from the regulations. 28s The regulations governing the Corps' own projects, however, imply that they will not be reevaluated periodically. Although the regulations provide for reevaluation of the location and methodology of dumping activity whenever it "becomes necessary," no standards are set forth by which this judgment is to be made Additionally, limiting review to only location and methodology suggests that other issues, such as the propriety of the dumping itself, will not be examined. Because Corps approvals for its own dumping activities lack expiration dates"' 0 and thorough periodic review, such activities may continue virtually forever. 241 As authorized by the Act, both EPA and Corps regulations require modification, suspension, or revocation of a permit when its conditions are violated 2 " 2 or when continued dumping would violate the permit evaluation criteria. 24" 3 The regulations list additional grounds for modi U.S.C. 1414(d) (Supp. IV, 1974). The original Senate version required review of permits at least every three years. S. REP. No. 451, supra note 5, at C.F.R (b), (d)(2) & (e)(3) (1975); 33 C.F.R. H (n) (2) & (h)(1) (1975) EPA provision for periodic reporting perhaps implies periodic review of the permits. 40 C.F.R (a) (1975) provides: Periodic reports. Information included in records required to be kept pursuant to shall be reported to the EPA official who issued the permit in question, as follows: (1) As of the end of each six-month period, if any, measured from the effective date of the permit and ending before its expiration; (2) As of the expiration of the permit, unless renewed; and (3) As otherwise required in the conditions of the permit. Corps regulations allow for "periodic progress inspections," but do not state what the length of such periods shall be. 33 C.F.R (o)(1) (1975) provides: The District Engineer may evaluate the circumstance and conditions of a permit either on his own motion or as the result of periodic progress inspections, and initiate action to modify, suspend, or revoke a permit as may be made necessary by considerations of the general public interest C.F.R (h) (2) (1975) C.F.R (f)(1)(iii) (1975) C.F.R (h) (2) (1975) U.S.C. 1415(f) (Supp. IV, 1974); 40 C.F.R (a)(1) & 223.2(a) (4) (1975); 33 C.F.R (o)(1) (1975) U.S.C. 1414(d) (Supp. IV, 1974); 40 C.F.R (a)(3) (1975); 33 C.F.R (o)(1) (1975).

39 ECOLOGY LAW QUARTERLY [Vol. 5:753 fication, suspension, or revocation not found in the Act; the Corps will act upon objections not previously considered, and EPA will act upon misrepresentations in the application or failure to keep records. 4 The Act requires that opportunity for a hearing be given a permitee prior to any modification, suspension, or revocation. 245 Both EPA and Corps regulations provide for hearings upon request before any agency action is taken 24 unless immediate suspension of permitted dumping activities is necessary. In such instances, the opportunity for a hearing is given subsequent to the suspension Such suspension of dumping may be necessary to avoid serious environmental damage. 248 C. Enforcement: Sanctions and Methods Violation of the Act or the regulations may result in both civil and criminal penalties 49 in addition to permit suspension or revocation.211 Only EPA may assess civil penalties; as much as $50,000 may be assessed for each violation, depending on its gravity and the violator's good faith and subsequent compliance. 25 ' Any person who knowingly For EPA, continued dumping might violate the criteria when conditions change (e.g., environmental changes at the dump site) or upon discovery of new scientific data. 40 C.F.R (a)(3) (1975). Corps regulations do not indicate what the Corps would consider the kind of change in circumstances that would warrant modification, suspension, or revocation C.F.R (o)(1) (1975); 40 C.F.R (a)(2) & (4) (1975) The statutory section concerning modification or revocation after reevaluation provides that "[nlo action shall be taken under this subsection unless the affected person or permittee shall have been given notice on such action as proposed." 33 U.S.C. 1414(d) (Supp. IV, 1974) [emphasis added]. The section dealing with revocation and suspension after violations of permit conditions provides: "[nlo permit shall be revoked or suspended unless the permittee shall have been given notice and opportunity for hearing on such violation and proposed suspension or revocation." 33 U.S.C. 1415(f) (Supp. IV, 1974) [emphasis added] C.F.R (c) (1975); 33 C.F.R (o)(2) (1975) EPA regulations provide for suspension, which becomes effective immediately upon notice, if dumping results in "imminent and substantial harm." 40 C.F.R (b) (1975). Corps regulations provide for immediate suspension where required by "the general public interest." 33 C.F.R (o) (3) (1975) However, it should be noted that the Act provides for an opportunity to be heard prior to any suspension, without specifying any exceptions. 33 U.S.C. 1415(f) (Supp. IV, 1974) U.S.C. 1415(a)-(b) (Supp. IV, 1974) See text accompanying note 242 supra U.S.C. 1415(a) (Supp. IV, 1974). While both EPA and the Corps have authority to issue permits, only EPA can assess penalties for violations of the Act. Congress intended this arrangement to result in a simpler and more uniform penalty assessment procedure. H.R. REP. No. 361, supra note 10, at After some debate, it finally was decided that federal government employees and agencies should be subjected to the same penalty provisions as private persons. Compare S. REP. No. 451, supra note 5, at 23, with H.R. REP. No. 361, supra note 10, at 22.

40 1976] OCEAN DUMPING REGULATION violates the Act also can be held liable for criminal penalties Although the Act requires only that a violator be given opportunity for an enforcement hearing, EPA regulations automatically provide for a hearing prior to any civil penalty assessment, even without request The permitee is liable for any violation, regardless of whether he actually conducts the dumping operations Both private citizens and the Attorney General may bring civil actions to enjoin private or public violators, including federal agencies. 2' 5 However, a citizen suit may be brought only if the United States has not begun a civil or criminal action 2 6 and if EPA has not commenced penalty assessment procedures within 60 days after notice of the violation The Act authorizes Coast Guard surveillance to ensure compliance 25 with its provisions. 18 While the Coast Guard has not yet promulgated regulations in furtherance of these duties, it has established an enforcement program. 259 It monitors all dumping of toxic wastes and selected 60 dumping of non-toxic wastes. However, it takes samples of dumped materials only when a violation is suspected or upon specific request from EPA. 2 "' Thus, its effectiveness lies primarily in ascertaining whether the materials are dumped at permitted times and locations, rather than in determining whether their toxicity and concentration conform to permit specifications. z26 The Coast Guard defends its sparse surveillance on the ground that it lacks facilities and expertise to Each day of violation, as well as each vessel that dumps, constitutes a separate,offense. 33 U.S.C. 1415(c) (Supp. IV, 1974). For discussion of EPA enforcement actions taken through December 1974, see 1975 EPA Testimony, supra note 122, at U.S.C. 1415(b) (Supp. IV, 1974). A knowing violator is subject to a criminal penalty of $50,000 and/or a prison term of up to 1 year. Id U.S.C. 1415(a) (Supp. IV, 1974); 40 C.F.R (1975) C.F.R & (1975) U.S.C. 1415(d) & (g)(1) (Supp. IV, 1974) U.S.C. 1415(g) (2) (B) & (D) (Supp. IV, 1974) U.S.C. 1415(g) (2) (A) & (C) (Supp. IV, 1974) U.S.C. 1417(c) (Supp. IV, 1974) Statement of Rear Adm. Robert 1. Price, Chief, Office of Marine Environment & Systems, U.S. Coast Guard, Hearing on the Marine Protection, Research & Sanctuaries Act of 1972 Before the Subcomm. on Oceans & Atmosphere of the Senate Comm. on Commerce, 94th Cong., 1st Sess., ser. 32, at (1975) [hereinafter cited as 1975 Coast Guard Testimony] Letter from the U.S. Coast Guard to Hon. Warren G. Magnuson, March 13, 1975, Hearing on the Marine Protection, Research & Sanctuaries Act of 1972 Before the Subcomm. on Oceans & Atmosphere of the Senate Comm. on Commerce, 94th Cong., 1st Sess., ser. 32, at 37 (1975) [hereinafter cited as 1975 Coast Guard Responses] Id See 1975 Coast Guard Testimony, supra note 259, at 33; 1975 Coast Guard Responses, supra note 260, at 37.