ELR Citation: ELR 20664
No(s). 93-2402 (D.N.J. Jun 24, 1994)

The court holds that environmental, fishing, and boating groups challenging a Marine Protection, Research, and Sanctuaries Act (MPRSA) permit to dump dioxin-contaminated sediment in an ocean disposal site are unlikely to prevail on the merits of their claim that the U.S. Army Corps of Engineers (Corps) impermissibly granted the permit, and denies a preliminary injunction barring the activities. The court had denied the injunction in an earlier proceeding, and had preliminarily concluded that the permittee had not conducted all the required tests on the material to determine whether the dioxin could escape the MPRSA regulation at 40 C.F.R. §227.6(a)'s ban on dioxin dumping. The court gave the permittee time to perform additional tests to demonstrate whether the material should be exempt from the dumping ban or to obtain a waiver. The court first holds that the bioassays that the permittee originally conducted to determine whether dumping the material would cause significant undesirable effects met the regulatory requirements and support the conclusion that the dioxin is a trace contaminant that falls outside the dumping prohibition of §227.6(a). The regulations indicate that the Corps and the U.S. Environmental Protection Agency (EPA) reserved wide discretion to determine which tests should be conducted and the manner of conducting those tests, and the agencies are entitled to deference. The court holds that it was not arbitrary or capricious for the agencies to have interpreted their own regulations as not requiring bioaccumulation tests in the "suspended particulate " phase for dioxin. The potential for any appreciable bioaccumulation by marine organisms through the suspended phase is very low because of the transient nature of both the suspended material in the water column above the dumping zone and the marine species that the material could affect. The court next holds that it was neither arbitrary nor capricious for the government not to require tests for dioxin on three organisms in the "solid phase," nor was it an improper interpretation of §227.6(c)(3) . The government required the most conservative dioxin test procedure on an organism that would produce results of the worst-case scenario. The dioxin test, and the tests for all other contaminants of concern, which the permittee conducted on three species, complied with §227.6(c)(3)'s requirements in that bioassay results on three benthic organisms did not indicate significant mortality or significant adverse sublethal effects due to the dumping of the dredged material. The court holds that the government's interpretation of the regulations is reasonable, and the government and permittee have complied with the regulations to establish that the dioxin in the dredged material was a trace contaminant and thus not within the §227.6(f)(1)'s prohibition.

The court next holds inapplicable §227.6(f)(1)'s exemption to the dumping ban for dioxin that is present in the dredged material only as a chemical compound or form that is not toxic to marine life and not bioaccumulative in the marine environment upon disposal and thereafter. Regarding the adequacy of the additional testing the permittee undertook pursuant to the prior proceeding, the court holds that it need not make detailed findings about the extent to which tests that took place after the dumping are indicative of predredging conditions. The permittee had performed all the required tests before the Corps issued the permit. The court next holds that the fact that the Corps required the permittee to cap the sediment with sand does not demonstrate that the sediment must have potentially unacceptable levels of toxicity or bioaccumulation of contaminants in benthic organisms that would make the dioxin more than a trace contaminant. The court further holds that the escape of 2 percent to 5 percent of the sediment as it descends to the ocean floor is not a per se violation of the MPRSA. Holding otherwisewould have the illogical result of effectively precluding all ocean dumping in situations where the Corps requires that the material be capped, since it would be impossible to prevent escape of a small portion of the dumped material during its descent through the water. Regarding the groups' challenge to the adequacy of the record to support certain of the government's findings, the court holds that the government's determination that a 10 part per trillion bioaccumulation standard has no significant undesirable effects is not arbitrary and capricious. The court also holds that the record supports the effectiveness of capping, although the record probably would have supported the issuance of the permit without the capping requirement since there was a valid finding that the dioxin was a trace contaminant. Finally, the court holds that the groups have not sustained their burden of establishing that the issuance of the dredging permit was arbitrary or capricious, and holds that the groups are unlikely to prevail on the merits of any of their claims. The court vacates its preliminary findings and denies the groups' request for a preliminary injunction.

Counsel for Plaintiffs
Gordon N. Litwin
Ansell, Zaro, Bennett & Grimm
The Military Park Bldg.
60 Park Pl., Newark NJ 07102
(201) 642-1801

Counsel for Defendants
Susan Handler-Menahem, Ass't
U.S. Attorney
U.S. Attorney's Office
Federal Bldg.
970 Broad St., Rm. 502, Newark NJ 07102
(201) 621-2700