Ocean Dumping Revisited: New Statutory Deadline May Not Stop Sea Disposal of Sewage Sludge

Apparently dissatisfied with the progress which has been made toward protecting the marine and coastal environments from the adverse effects of ocean dumping, Congress passed and on October 20 sent to the President for his signature a bill¹ containing an amendment to the Marine Protection, Research and Sanctuaries Act that is aimed at banning the dumping of municipal sewage sludge after December 31, 1981. President Carter signed the measure into law on November 4.² The amendment serves to add the weight of statutory authority to an existing provision in the Environmental Protection Agency's (EPA) ocean dumping regulations prohibiting the issuance of interim permits for sewage sludge dumping beyond that date.³ Congress apparently believed that such an administrative deadline would inevitably yield to pressure from municipal dumpers with the advent of the anticipated surge in sludge production as cities begin full implementation of secondary sewage treatment under the Federal Water Pollution Control Act (FWPCA).

The amendment invites analysis on three counts: first, it contains a potential loophole through which EPA may be able to allow a flotilla of sludge-filled barges to float after the 1981 deadline; secondly, it assumes that economically and technologically feasible alternative methods of sludge disposal can be fully implemented by the current dumpers within four years; and thirdly, while sewage sludge is aesthetically unpalatable and highly visible in the political sense, it represents but a small part of the total volume of potentially harmful material dumped into the oceans around the United States each year.

Statutory Background

Title I of the Marine Protection, Research and Sanctuaries Act of 1972, commonly known as the Ocean Dumping Act, enunicated a national policy 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."⁴ The Act prohibits any ocean dumping without a permit and bifurcates permit issuing authority between EPA and the Army Corps of Engineers, with the former regulating the dumping of sewage sludge and industrial wastes and the latter, subject to EPA veto power, supervising the discharge of dredged material. The Act was amended in 1974 to include by reference any more stringent discharge criteria contained in the International Ocean Dumping Convention⁵ which went into effect in 1975 and prohibits, for example, the dumping of sewage sludge containing toxic metals such as cadmium and mercury in excess of "trace" levels.⁶

The statute allows the issuance of permits for discharges which EPA or the Corps has determined "will not unreasonably degrade or endanger" human health or the marine environment,⁷ and authorizes EPA to establish various permit categories for non-dredged materials. Although it set no deadlines, the Act also gave an indication that Congress expected fairly expeditious progress to be made in limiting ocean dumping. Section 203, which deals with research rather than regulation, directed the Secretary of Commerce to conduct studies "for the purpose of determining means of minimizing or ending all dumping of materials within five years of the effective date of this Act."⁸

One section of the FWPCA also deals directly with ocean discharges. Section 403 of the Act⁹ requires EPA to regulate discharges of non-dredged materials from on-shore outfall pipes, from all point sources out to three miles, and from point sources other than vessels out to 12 miles. In situations "where insufficient information exists on any proposed discharge to make a reasonable judgment" as to its environmental effects, no permit may be issued.

EPA's Ocean Dumping Regulations and Criteria

EPA published its original regulations and criteria¹⁰ for implementing both the Ocean Dumping Act and § 403 of the FWPCA in 1973, almost a year after the two laws were passed. These rules and EPA's actions under them quickly became the center of controversy. The National Wildlife Federation (NWF), which assumed the role of chief public interest monitor of the agency's compliance with the statutory requirements in this area, leveled several basic criticisms against the agency's standards and its performance. One was that EPA was allowing excessive dumping of contaminants through the creation and issuance of "interim" permits for ocean disposal of materials which could not meet the criteria set forth in the [7 ELR 10227] regulations. Secondly, NWF argued that the application of different substantive standards in determining the permissibility of dumping dredged versus non-dredged materials was incompatible with the statute. NWF also saw EPA's failure to set a target date for phasing out dumping, particularly that allowed by interim permit, as evidence of an implicit determination to allow dumping to continue indefinitely.

On January 7, 1977, EPA promulgated final revised ocean dumping regulations and criteria¹¹ which represented a significant improvement over the original rules. The new regulations provide for more uniform treatment in evaluating the proposed dumping of dredged material and non-dredged wastes, and put more emphasis on testing the toxicity of ocean-dumped wastes to marine organisms as opposed to the earlier practice of looking only at pollutant concentrations in ambient water at or near the dump site. Perhaps the most dramatic change, however, was the imposition of a December 31, 1981 cutoff date¹² on the continued availability of interim dumping permits as a means of disposing of wastes which will exceed the levels specified in the ocean dumping criteria. While this provision for the first time set a termination date for municipal sewage sludge dumpers, it had the effect of extending the previously announced April 1978 cut-off date for industrial waste dumpers by more than three years.

Implementation: The Battle of the Sludge

EPA has made heavy use of interim permits under the Act for non-dredged material discharges.¹³ The agency found the device especially useful as a means of regulating the dumping of sewage sludge by the eastern municipalities of Philadelphia, Camden, New Jersey, and those in the metropolitan New York-New Jersey area. The sludge from each of these three areas could not meet the agency's ocean dumping criteria and therefore could be dumped only under an interim permit. The regulations limit such permits to a term of one year and require that they contain a schedule for phasing out dumping. The agency's use of interim permits thus represented a policy of allowing contaminant levels above the regulatory ceilings in the short-term in order to maneuver dumpers into gradually switching to alternative disposal methods.

The agency's progress on this front has been slow but noticeable. After litigation challenging the legality of an interim permit for Camden's dumping of sewage sludge,¹⁴ a public hearing on whether a new interim permit for the dumping should be issued when the old one expired, an EPA denial of the application for the additional interim permit, litigation challenging the permit denial, and the receipt of an EPA grant of federal funding for the construction of a sludge composting plant, the city of Camden agreed to cease dumping by the end of 1977 when its current permit expires. Philadelphia, the other major dumper off the Delaware-Maryland coast, has apparently accepted,¹⁵ albeit grudgingly, a 1980 deadline for phasing out ocean disposal of its sewage sludge by using some form of land application or incineration as an alternative disposal method. If Philadelphia can meet this goal it will leave the New York-New Jersey metropolitan area as the only remaining municipal sewge sludge dumper on the east coast. In order to assure that barges from additional cities will not be towed into the picture between now and 1981, the revised EPA regulations limit the issuance of interim permits after April 1978 to dumpers who already hold such permits.¹⁶

EPA also won a significant victory last summer in its fight to control deep ocean outfall discharges of sewage sludge on the west coast when a federal district court in California upheld an EPA order to the city of Los Angeles directing it to cease such discharges through an outfall beyond the three-mile limit. The court ruled in Pacific Legal Foundation v. Quarles¹⁷ that the requirement in § 301 of the FWPCA¹⁸ for application of secondary treatment to municipal sewage plant effluents and the concern expressed in § 403 for preventing degradation of ocean waters authorized the agency to issue the order to implement the Ocean Dumping Act's general policy of phasing out ocean discharges. The court held further that the order was valid even though the grant of federal funding for its implementation would not be forthcoming until EPA completed preparation of an environmental impact statement.¹⁹

Legislating a Deadline

These manifestations of gradual progress were apparently viewed as insufficient on Capitol Hill, particularly by congressmen and senators from coastal states whose shores and offshore waters were bearing the environmental burden of ocean dumping. Section 203 of the Ocean Dumping Act had expressed the hope that ocean dumping could be ended within five years, and as the fifth anniversary of the Act's passage drew near, congressional frustration that no end was yet in sight became evident.²⁰ The upshot of this annoyance was the ultimately successful effort to legislate a dumping deadline, at least for the politically visible problem of sewage sludge disposal. The municipalities that are presently dumping sludge not surprisingly opposed this effort. EPA, interestingly enough, also voiced doubts about it, ostensibly on the ground that it made no [7 ELR 10228] provision for flexible administrative sanctions in the event of non-compliance.²¹

The amendment itself is short and to the point. The EPA Administrator:

shall end the dumping of sewage sludge into ocean waters … as soon as possible after the date of enactment of this section, but in no case may the Administrator issue any permit, or any renewal thereof (under Title I of the Marine Protection, Research, and Sanctuaries Act of 1972) which authorizes any such dumping after December 31, 1981.²²

The amendment then proceeds to qualify this seemingly air-tight deadline:

For purposes of this section, the term "sewage sludge" means any solid, semisolid, or liquid waste generated by a municipal waste water treatment plant the ocean dumping of which may unreasonably degrade or endanger human health, welfare, amenities, or the marine environment, ecological systems, or economic potentialities.²³

The proponents of the measure in the House had no doubts that it would cut off interim sludge dumping permits at the end of 1981.²⁴ However, Senator Muskie (D-Me.) in response to a question from Senator Moynihan (D-N.Y.) during the floor debate, indicated that the latter provision would allow the EPA Administrator to grant an extension beyond the 1981 deadline upon a finding that the sewage sludge discharge in question would not "unreasonably degrade or endanger" human health or the ocean environment.²⁵

The second half of the measure simply restates as part of the definition of prohibited sewage sludge the existing statutory prohibition against unreasonably degrading or dangerous dumping.²⁶ The amendment thus at least arguably does not touch EPA's practice of issuing interim permits for the dumping of sewage sludge which does not meet the environmental criteria but for which no acceptable alternative method of disposal is yet available. A reviewing court might well see the issuance of an interim permit under EPA's regulations²⁷ as equivalent to a determination that such dumping does not lead to "unreasonable" environmental degradation under the circumstances. This could be a loophole in the amendment that allows dumping under such a permit to continue beyond the statutory cut-off.

EPA's initial opposition to the deadline provision was based on the objection that it ignored the problem of viable administrative enforcement options in the event of non-compliance. Senator Roth (R-Del.) attempted to add a section to the bill that would have provided for administrative assessment of delayed compliance penalties based on the economic benefits realized by the dumper as a result of the failure to comply with the deadline,²⁸ but he withdrew his proposal after receiving assurances that the issue of delayed compliance penalties under the Ocean Dumping Act would be considered in more depth in hearings early in 1978.

Alternative Means of Sludge Disposal

Successful curtailment of sewage sludge dumping at a time when progress toward full implementation of secondary treatment at municipal plants is generating an increasing volume of sludge depends on the availability of economically and technologically feasible alternative disposal methods. There are basically three options, other than ocean dumping, for disposing of sewage sludge: incineration, landfilling, and land application. Only 15 percent of the sewage sludge produced nationally is ocean dumped. Thirty-five percent is incinerated, and the remaining 50 percent is divided equally between landfills and direct land application.²⁹ While these alternatives are technologically feasible, they are all more expensive than ocean disposal and involve other environmental impacts such as increased air pollution and risks of toxic metal or pathogen contamination.

The key to convincing coastal municipalities to stop ocean dumping may thus be federal grants for the capital and operating erxpenses of implementing alternative disposal methods and federal research aimed at minimizing the associated risks to human health and the environment. Realizing this, EPA has undertaken an extensive research program on incineration and land application.³⁰ The agency has also provided more than $1 million in federal funding under the FWPCA to aid Camden in switching from dumping to composting and incineration next year.

The search for alternatives has been most difficult for the largest dumper, the New York-New Jersey metropolitan area. New York is responsible for more than 70 percent of all the sewage sludge dumped at sea and in addition discharges 500 million gallons of raw sewage a day through Gateway Park. Incineration would aggravate New York's already severe air pollution problem, however, and the large amount of land needed for landfilling or land application would be hard to find in or near the city. In addition, the estimated cost of implementing these alternatives is at least $500 million, money the city quite simply does not have.

Conclusion

After several years of struggling to implement the Ocean Dumping Act, EPA is finally making discernible progress toward the goal of ending the ocean dumping of sewage sludge. Two of the three remaining municipal dumpers on the east coast, Philadelphia and Camden, will probably meet the 1981 deadline set by both the recent amendment to the Act and EPA's regulations. The largest dumper, the New York area, is unlikely to meet the deadline, however, and will probably require substantial [7 ELR 10229] federal financial assistance to make any headway toward phasing out its dumping and improving the condition of the badly polluted New York Bight.

The dumping of sewage sludge at sea, like the dumping of industrial wastes, has been the subject of sharply focused regulatory attention under the Ocean Dumping Act. But these materials represent little more than ten percent of the total tonnage dumped in the oceans around the United States each year. The bulk of the material dumped is dredged spoil, much of it from polluted harbor bottoms. Little effort has yet been made by either Congress or EPA to cut back the Corps of Engineers' activities in this area, perhaps because of a belief that ocean dumping is a more environmentally acceptable method of disposing of dredged material than piling it on ecologically valuable wetlands. In fact, EPA has given some indication that it believes this "best environmental alternative" test is applicable to sewage sludge dumping and might legitimize such dumping, where, as in the case of New York, the environmental impacts associated with alternative disposal methods are severe.³¹

1. H.R. 4297, 95th Cong., 1st Sess. (1977). The text of the measure appears at 123 CONG. REC. H11021-22 (daily ed. Oct. 14, 1977). For a general description of the issues confronting federal regulation of ocean dumping, see Comment, Ocean Dumping, the Revised EPA Criteria, and the National Soil Fertility Program, 6 ELR 10144 (July 1976).

2. Pub. L. No. 95-153, 13 WEEKLY COMP. OF PRES. Doc. 1721 (Nov. 7, 1977).

3. 40 C.F.R. § 220.3(d), 42 Fed. Reg. 2468 (Jan. 11, 1977), ELR STAT. & REG. 46313.

4. 33 U.S.C. § 1401(b), ELR STAT. & REG. 41821.

5. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters, ELR STAT. & REG. 40329.

6. Id. at art. IV (1), Annexes I and II.

7. 33 U.S.C. §§ 1412(a), 1413(a), ELR STAT. & REG. 41821, 41822.

8. 33 U.S.C. § 1443, ELR STAT. & REG. 41824.

9. 33 U.S.C. § 1343, ELR STAT. & REG. 41124.

10. 38 Fed. Reg. 28610(Oct. 15, 1973).

11. 40 C.F.R. §§ 220-229, 42 Fed. Reg. 2462 (Jan. 11, 1977), ELR STAT. & REG. 46305.

12. Id. at § 220.3(d), 42 Fed. Reg. 2468, ELR STAT. & REG. 46313.

13. See STAFF OF SENATE COMM. ON COMMERCE, 94TH CONG., 2D SESS., OCEAN DUMPING REGULATION: AN APPRAISAL OF IMPLEMENTATION 11-12 (Comm. Print 1976).

14. Maryland v. Train, 415 F. Supp. 116, 6 ELR 20496 (D. Md. 1976).

15. Statement of Carmen Guarino, Commissioner, Water Dep't, City of Philadelphia in NACOA-Sea Grant-Ocean Dumping: Hearings on Ocean Dumping Oversight Before the Subcomm. on Oceanography and the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 95th Cong., 1st Sess. 460 (1977).

16. 40 C.F.R § 220.3(d), 42 Fed. Reg. 2468 (Jan. 11, 1977), ELR STAT. & REG. 46313.

17. __ F. Supp. __, 7 ELR 20653 (C.D. Cal. July 20, 1977).

18. 33 U.S.C. § 1311, ELR STAT. & REG. 41112.

19. __ F. Supp. at __, 7 ELR at 20654.

20. See generally Hearings, supra note 15 at 217-46, 399-510.

21. Id. at 454-55.

22. Pub. L. No. 95-153. The full text of the measure appears at 123 CONG. REC. H11021-22 (daily ed. Oct. 14, 1977).

23. Id.

24. See 123 CONG. REC. H11022-23 (daily ed. Oct. 14, 1977).

25. 123 CONG. REC. S17420 (daily ed. Oct. 20, 1977).

26. 33 U.S.C. §§ 1412(a), 1413(a), ELR STAT. & REG. 41821, 41822.

27. 40 C.F.R. § 227.3, 42 Fed. Reg. 2477, ELR STAT & REG. 46316:4.

28. Id. at S17419-20.

29. Congressional Research Service, Sludge: Disposal and Use 1 (Issue Brief IB77067 1977).

30. See Environmental Protection Agency, Ocean Dumping in the United States — 1976 at 67-74 (1976).

31. Id. at 75-76. The agency also alluded to this standard in the preamble to its revised regulations:

Increasingly, EPA has become aware that the alternatives to ocean dumping require careful evaluation; they may not always be better.

42 Fed. Reg. 2464 (Jan. 11, 1977), ELR STAT. & REG. 46307.