The Ocean Dumping Debate -- Continued

The Ocean Dumping Debate — Continued

Thomas Bick and Kenneth Kamlet

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— The Editors

Mr. Bick is Director of the Ocean Dumping Project, and Mr. Kamlet is Director of the Pollution and Toxic Substances Division, at the National Wildlife Federation, Washington, D.C.

[13 ELR 10034]

Samuel Bleicher's recent article on ocean dumping, "The Battle Over Ocean Dumping," 12 ELR 15032, while providing an excellent analysis of many of the key issues in the debate over ocean disposal of contaminated wastes, fails to address a critical point: the national and international precedent that could well be established by a U.S. policy reversal on ocean dumping. Because contaminated sewage sludge is now dumped on only one area of the coastal United States — at a location in the New York Bight approximately twelve miles off the New Jersey coast — much of the discussion of the federal policy on ocean disposal has focused exclusively on the costs and impacts of, and the alternatives to, dumping at that site. As a consequence, the larger national and worldwide ramifications of our national ocean dumping policy tend to be neglected, and here Bleicher's article is no exception.

What ultimately happens in the New York Bight could have a major impact on the quality of all U.S. coastal waters. Sewage sludge now dumped in the Bight by New York and Northern New Jersey sewerage authorities is among the most highly contaminated in the country. Pollutants in these wastes include a wide variety of toxic heavy metals, pathogenic microorganisms, petroleum hydrocarbons and organohalogens such as PCBs and chlorinated hydrocarbon pesticides. Many of these contaminants are known to have severe adverse effects on marine organisms, and many readily accumulate in the tissues of fish and shellfish and consequently threaten the human foodchain. If sludge this contaminated can be lawfully ocean-dumped, one wonders how the federal government will be able to justify preventing others — municipalities and industrial sources alike — from disposing of their toxic wastes in the same way.

Judge Sofaer's decision in City of New York v. EPA, 12 ELR 21003, required a broad evaluation of New York's ocean dumping in light of the available alternatives. The court's guidance was not specific, and there is now a distinct possibility that EPA will establish a policy that sludge management decisions are to be based on an "equal" balancing of the economic costs and environmental impacts of all disposal options. Because the costs of ocean dumping are often so low, and because the environmental impacts of ocean dumping are still so speculative, the adoption of the type of balancing test propounded by Judge Sofaer is tantamount to a government-sanctioned preference for ocean disposal. This legal and economic preference, coupled with the reality that ocean disposal is almost always the sludge management alternative of least political resistance, could well translate into a massive increase in the ocean dumping of toxic wastes. (Some scientists have argued that the oceans are underutilized as a waste disposal medium, but there also is reason to believe that persistent toxic contaminants and sludges which contain them should not be dispersed into the environment under conditions which preclude meaningful management, but that isolation and containment on land under strict management safegurds — or destruction, e.g., by incineration or pyrolysis is more likely to minimize risks to health and the environment.)

Such a scenario is not idle speculation. Captain Lawrence Swanson, head of the Office of Marine Pollution Assessment of the National Oceanic and Atmospheric Administration, writing in the June 1982 issue of Environment magazine, estimated that nationwide over 17 million tons of sludge might be ocean dumped by 1985 if major sludge producers on the East and West Coasts, who are now considering ocean dumping, are permitted to do so. This would be more than a threefold increase in sludge dumping levels since Congress amended the MPRSA in [13 ELR 10035] 1977 to prohibit the dumping of harmful sludge beyond 1981. Already Philadelphia (having successfully abandoned ocean dumping in November 1980); Baltimore; Boston; Washington, D.C.; Jacksonville, Florida; San Francisco; San Diego and Seattle are weighing the ocean dumping option, with a close eye on events in the New York Bight. Pressure to pursue this option will continue to grow. Over the next decade, there will not only be a drastic increase in the amount of sludge produced in U.S. coastal areas (as a result of sewage treatment plant improvements), but much of the sludge that is produced will be more highly contaminated — and consequently more costly to manage — than sludge today. Increasingly, local sewerage authorities, faced with drastic cuts in federal sludge management funds and growing public concern over the effects of land-based disposal of contaminated wastes, will look for cheaper and less controversial disposal alternatives. For coastal communities, that will often mean ocean dumping, unless some type of statutory barrier to easy ocean access is maintained.

Sewage sludge is not the only material with which waste managers must contend. Growing amounts of toxic industrial wastes, radioactive wastes, coal ash and dredge spoils must also be disposed of. The Sofaer decision, should it become federal policy, could well affect the disposal of these wastes as well. As noted by Bleicher, interest in ocean disposal of industrial waste appears to be increasing, and the statutory language applicable to sewage sludge, which Judge Sofaer interpreted as requiring a balancing test, is identical to the language applicable to industrial wastes. In short, the City of New York decision, if allowed to drive U.S. ocean dumping policy, is likely to extend far beyond the New York Bight and sewage sludge — to other coastal areas and other types of contaminated wastes. It is in this broader context that one must view both EPA's refusal to appeal the Sofaer decision to a higher court, and the National Wildlife Federation's ongoing effort to counter that decision in a separate lawsuit against New Jersey-based ocean dumpers.

A paper by John Farrington and three other marine scientists, just published in the Winter issue of Oceanus, put it well:

There is a very great danger of the "snowball made into an avalanche" effect with respect to ocean dumping, which should be avoided at all costs until reasonable assessment of the options is completed. The problem is that if one municipality or industry is allowed to use the oceans for waste disposal, then many others may cite the precedent and follow …. The situation then could get out of hand before the required data and assessment supportive of extensive dumping is available.

Perhaps even more significant than the national implications of the Sofaer decision is the potential impact of EPA's failure to invoke the London Dumping Convention in the course of the City of New York litigation. The Convention is an international ocean dumping treaty ratified by the United States and 48 other nations. It was made fully binding on the EPA Administrator through a 1974 Amendment to the Ocean Dumping Act. The Convention flatly prohibits the dumping of certain toxic materials in more than trace contaminant amounts. Although sludges now being dumped in the Bight exceed these Convention limitations (as implemented under U.S. law), no mention was made of the treaty during the City of New York litigation.

Certainly, the United States will be in no position to persuade other countries to take the Convention seriously if it refuses to do so itself. Major industrialized nations, particularly those with large populations and relatively small land areas such as Japan and the United Kingdom, are already under great pressure to dispose of toxic wastes in their coastal waters. An about-face by the U.S. with respect to sludge dumping in the New York Bight is a clear signal to the rest of the world that the U.S. has no intention of meeting its responsibilities under the London Dumping Convention. It is with this in mind that the National Wildlife Federation intends to make the restrictions in the Convention a central focus of its New Jersey suit [ELR PEND LIT. 65774].

Hopefully, it is in the larger national and international context that the discussion of the dumping of sewage sludge in the New York Bight will now take place. For too long the debate has been confined to the now-familiar arguments for and against the continued use of the Bight dumpsite. One particularly well-worn claim, reiterated by Bleicher, is that sludge accounts for "only" five to 15 percent of the total pollution load in the Bight. That such arguments could have persuaded a federal court to bend the law to allow the continued dumping of toxic wastes in the Bight is unfortunate. That the same arguments are now being used to justify a major federal policy reversal on ocean dumping — with all of its potential national and international ramifications — could prove disastrous.