Latent Risks of Ocean Dumping: EPA Administrator Affirms Philadelphia's Phase Out Order

The Administrator of the Environmental Protection Agency has upheld on appeal¹ a subordinate's commitment to more vigorous protection of the marine environment from the adverse effects of ocean dumping. In a test case² involving the City of Philadelphia's dumping of sewage sludge, Mr. Train, adopting the recommendations of a Hearing Panel, affirmed imposition by the Regional Administrator for Region III, of a significant condition on the city's latest one-year interim dumping permit. The condition requires the City to phase out its ocean disposal of sewage sludge over the next six years, halving the level of discharges by 1979 and shifting completely to on-land disposal by 1981.

The Administrator's decision, which incorporated by reference the Hearing Panel's more extensive conclusions,³ rested on a strict interpretation of the pertinent federal law and a sophisticated approach to latent environmental risks. In Mr. Train's view, Congress, by enacting the Marine Protection, Research and Sanctuaries Act of 1972,⁴ affirmatively prohibited the transport of materials for the purpose of ocean dumping, and allowed the EPA Administrator to modify that prohibition only in situations where he determines either that the dumping will not cause adverse effects to the marine environment, or that alternative disposal methods present a greater threat of harm to public health or the environment. Further, such a determination must include consideration of whether the dumping will unreasonably endanger the marine environment in terms of the persistence and permanence of its effects. And the proponent of dumping bears the burden of proving that no such adverse effects will occur.

[5 ELR 10214]

Evidence of Effects and Legal Standards

The potential adverse effect to the marine environment with which EPA and the intervening National Wildlife Federation were principally concerned was pollution by heavy metals. Philadelphia's sludge contains high levels of mercury and cadmium, as well as lead, zinc and a number of other toxic metals. The Administrator characterized the scientific evidence relating to this and other environmental impacts of the city's dumping as preliminary and subject to differing interpretations. But to focus solely on whether the data demonstrate harmful heavy metals concentrations in particular organisms at the dump site would be, according to Mr. Train, to take an unnecessarily narrow view of the regulatory criteria established by § 102 of the statute.

The Administrator then found that given the ambiguity of the evidence, the City had failed to show that continued dumping will not contribute to a general deterioration of the ocean or that such deterioration will not eventually cause adverse effects. Pointing to the testimony of scientists before the Hearing Panel which expressed serious concern over the continued accumulation of pollutants off the highly populated East Coast, Mr. Train stated that such potential harm is precisely what Congress had in mind when it required EPA to consider endangerment of the ocean before granting a permit.

In the Administrator's estimation the record did not indicate a need for immediate termination of the dumping, but was sufficient to confirm the appropriateness of the Regional Administrator's six-year phase out schedule as a reasonable means to insure that the City's discharges do not result in irreversible harm. This approach — opting for a gradual phasing out of ocean dumping rather than an immediate cessation in the face of ambiguous environmental data and economic impacts of uncertain proportions — comports with the Eighth Circuit Court of Appeals' resolution of the Reserve Mining controversy. The court in Reserve Mining⁵ ruled that immediate injunctive relief against further discharges was unwarranted given the inconclusive state of the evidence concerning the health effects of ingesting asbestos and the potentially serious economic impacts on the company, but went on to indicate that the company must abate its air and water pollution within a "reasonable time."

Recognizing that the probable impact of alternative methods or locations of disposal must also be considered in weighing the Regional Administrator's phase-out condition, Mr. Train found sufficient evidence of record to demonstrate that on-land methods of sewage disposal can be successfully implemented by Philadelphia. Observing that many major cities employ disposal methods other than ocean dumping, Mr. Train found that the Hearing Panel was correct in assuming that Philadelphia has a large number of available disposal options which can be developed within the time allowed. In view of the accelerating production of sludge from waste water treatment works as plants are upgraded to secondary treatment in response to the Federal Water Pollution Control Act Amendments of 1972, the Administrator emphasized the need to develop socially acceptable uses for sludge which will allow its beneficial components to be recycled rather than wasted.

The single point on which the Administrator's decision diverged from the Regional Administrator's was the issue of increasing the 150 million gallon limit imposed on dumping under the permit. After forcefully stating his opposition to allowing dumping to increase beyond its present levels, Mr. Train nevertheless accepted the Hearing Panel recommendation that the limit be vacated and a possibly higher new limit established following a reassessment of the situation by the Regional Administrator. This action was based on evidence in the record indicating that if more than 150 million gallons of sludge is actually produced during the life of the interim permit, the excess will simply be discharged into the Delaware River if it is not permitted to be dumped at sea.

New York Next?

Only one other major metropolitan area, the City of New York, is presently using ocean dumping to dispose of sewage sludge, but New York's use is on a far vaster scale than Philadelphia's. New York dumps more than six times as much sludge annually and has made a large capital investment in a fleet of ocean-going barges. Philadelphia, on the other hand, leases a single barge for its dumping activity. While no formal phase-out order has been issued to New York, EPA officials in Region II have informally set a termination date of 1981 for that city as well.

The message of the Philadelphia test case is quite clear. The Marine Protection, Research and Sanctuaries Act is alive and well, while the days of ocean disposal of sewage sludge are numbered. Cities which may have been entertaining thoughts of going to sea with the increasing amounts of sludge that their upgraded sewage treatment plants will produce had better think again, and begin experimenting with the various techniques for land disposal.

1. In re Interim Ocean Disposal Permit No. PA-010 Granted to the City of Philadelphia, 5 ELR 30003 (Train, EPA Admin. Sept. 25, 1975).

2. For a detailed factual analysis of the dispute and an examination of the legal issues raised in the appeal to Administrator Train, see Comment, Test Case on Ocean Dumping: Must Philadelphia Move Toward On-Land Disposal of Sewage Sludge? 5 ELR 10144 (Sept. 1975).

3. Copies of the Hearing Panel's Recommendations are available through the ELR Document Service, ELR Dig. [354], Document D (68 pp. $6.80).

4. 33 U.S.C. §§ 1401 et seq., ELR 41801.

5. Reserve Mining Co. v. Environmental Protection Agency, 5 ELR 20596 (8th Cir. Mar. 14 & Apr. 8, 1975).